Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent: (a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent: (i) counterparts of this Agreement executed by each of the parties hereto; (ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower; (iii) The Subsidiary Guaranty executed by the applicable parties thereto; (iv) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may 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%); (v) 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, authorized to execute and deliver 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; (viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party; (ix) 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 effective as of the Agreement Date; (xii) the Fee Letter; (xiii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; (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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect; (xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require; (xviii) A certificate of the Borrower 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 (xix) such other documents, agreements and instruments as the 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 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 (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; (d) 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and (e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 2 contracts
Sources: Credit Agreement (LGI Homes, Inc.), Credit Agreement (LGI Homes, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower;
(iii) The Subsidiary Guaranty executed by the applicable parties thereto;
(iv) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may 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, California, 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 five percent (45%);
(v) 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 EffectParty;
(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, authorized to execute and deliver 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;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) 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, 20192021;
(xi) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paidpaid or will be paid from Loans to occur on the date hereof;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements and instruments as the 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 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 (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act, in each case to the extent requested in writing at least five (5) Business Days prior to the Agreement Date.
Appears in 2 contracts
Sources: Sixth Amendment to Fifth Amended and Restated Credit Agreement (LGI Homes, Inc.), Fifth Amended and Restated Credit Agreement (LGI Homes, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms applicable provisions of Section 2.12(a) 2.10., and the Swingline Note executed by the Borrower;
(iii) The Subsidiary the Guaranty executed by the applicable parties theretoParent and each Subsidiary that owns or leases an Initial Unencumbered Pool Property, if any, as of the Effective Date;
(iv) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may 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%);
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party;
(viv) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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 the 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 Effecthas its principal place of business;
(viivi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing Borrowings, Notices of Continuation and requests for Letters of Credit, Notices of Conversion and Notices to request the issuance of ContinuationLetters of Credit;
(viiivii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, in form reasonably satisfactory to the Agent;
(ix) a Borrowing Base Certificate calculated as of the Cutoff Fees then due and payable under Section 3.6., and any other Fees payable to the Agent and the Lenders on or prior to the Effective Date;
(x) a Compliance Certificate calculated on a as of the Effective Date (giving pro forma basis for effect to the Borrower’s fiscal quarter ending March 31, 2019financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) a Disbursement Instruction Agreement effective Borrowing Base Certificate calculated as of the Agreement Effective Date;
(xii) evidence that the Fee LetterBorrower’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) evidence that a disbursement statement setting forth in reasonable detail the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any application of the Lenders, including without limitation, initial Loans being funded on the fees and expenses of counsel to the Administrative Agent, have been paidEffective Date;
(xiv) with respect evidence that any lenders under the Existing Credit Agreement that are not continuing as Lenders hereunder have agreed to each Borrowing Base Property identified on Schedule 4.1, each accept repayment of all amounts due them under the items referred to in Section 6.3 required to be delivered in connection with any Borrowing Base PropertyExisting Credit Agreement and terminate their commitments thereunder;
(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 evidence that there are no liens releases of record any prior mortgages recorded on such property other than Permitted Liens;
(xvi) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate any of the Borrower certifying Initial Unencumbered Pool Properties have been delivered to a third-party title insurance company for recordation and that, upon the recording thereof, such and that the Loans such Initial Unencumbered Pool Properties are permitted under free and clear from any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence theretoliens or encumbrances; and
(xixxvi) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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 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;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(diii) the BorrowerParent, the other Loan Parties Borrower and the its 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, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound; and
, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (eA) 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 and each or any other Loan Party shall have provided all information requested by to fulfill its obligations under the Administrative Loan Documents to which it is a party or the ability of the Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Actexercise its remedies hereunder.
Appears in 2 contracts
Sources: Credit Agreement (Kite Realty Group Trust), Credit Agreement (Kite Realty Group Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each applicable Lender (but excluding including any Designated Lender, if applicable), other than any Lender that has requested that it not receive Notes) a Note, and complying with the terms of Section 2.12(a2.11.
(a) and the Swingline Note executed by the Borrower;
(iii) The Subsidiary the Guaranty executed by each of the applicable parties Guarantors initially to be a party thereto;
(iv) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower Parent and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders and covering the matters set forth 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%)Exhibit O;
(v) 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, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) 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 31September 30, 20192020;
(xix) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xii) the Fee Letter;
(xiiixi) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xixxii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.; and
(b) In the good faith judgment of the Administrative Agent:
(i) there 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 Parent 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;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the Borrower, the other Loan Parties Parent and the other 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which could not reasonably be likely to (e1) have a Material Adverse Effect, or (2) restrain, enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower and each or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iv) the Administrative Agent and the Lenders shall have provided received, at least five (5) Business Days prior to the Agreement Date, all documentation and other information requested by the Administrative Agent and each or any Lender or required by regulatory authorities in order for the Administrative Agent and the Lenders to comply with requirements of any Anti-Money Laundering Laws, including the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations;
(v) the Borrower shall have delivered to the Administrative Agent, including without limitationand directly to any Lender requesting the same, a Beneficial Ownership Certification in relation to it (or a certification that such Borrower qualifies for an express exclusion from the Patriot Act“legal entity customer” definition under the Beneficial Ownership Regulations), in each case at least five (5) Business Days prior to the Agreement Date; and
(vi) there shall not have occurred or exist any material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Regency Centers Lp), Credit Agreement (Regency Centers Lp)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each applicable Lender (but excluding all Lenders and any Lender that has requested that it not receive Notes) Designated Lender, if applicable, and complying with the terms of Section 2.12(a) 2.11.(a); and the Swingline Note executed by the Borrower;
(iii) The Subsidiary the Guaranty executed by the applicable parties theretoParent and any other Person that would be required under Section 8.13. to become a party to the Guaranty as of the Effective Date;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower Borrower, the Parent and such the other Loan Parties as the Administrative Agent may request, Guarantors 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 an opinion of the aggregate assets of the Borrower and/or the Subsidiary Guarantors for such State ▇▇▇▇▇▇ & Bird LLP, counsel to the total aggregate amount of assets for Agent addressed to the Borrower and/or Agent and the Subsidiary Guarantors is less than or equal to four percent (4%)Lenders;
(v) the certificate or articles of incorporation or formationincorporation, 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 PartyPerson;
(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 Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party Person is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(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 Person authorized to execute and deliver the Loan Documents to which such Loan Party Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Conversion, Notices of ContinuationContinuation and Bid Rate Quote Requests;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan PartyPerson, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) a Borrowing Base an Unencumbered Pool Certificate calculated as of the Cutoff Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March December 31, 20192006;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.53.6., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;; and
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.; and
(b) there In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsDecember 31, budgets2005, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to Borrower, the Administrative Agent and the Lenders prior to the Agreement Date Parent, any other Loan Party or any other Subsidiary that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the Borrower, The Borrower and the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the Borrower and each other Loan Party shall have provided all information requested 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 ActLoan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Regency Centers Lp), Credit Agreement (Regency Centers Corp)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The 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 Bid Rate Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notesor Designated Lender, if applicable) and complying with the terms applicable provisions of Section 2.12(a) 2.11., and the Swingline Note executed by the Borrower;
(iii) The Subsidiary Guaranty executed by each Guarantor existing as of the applicable parties theretoEffective Date;
(iv) an An opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent Agent, the Lenders and the Lenders Swingline Lender, addressing the matters set forth 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%)Exhibit M;
(v) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party;
(vi) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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 EffectParty;
(vii) 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, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation and requests for Letters of Credit, Notices of Conversion and Notices to request the issuance of ContinuationLetters of Credit;
(viii) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan 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 and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as of The Fees then due and payable under Section 3.6., and any other Fees payable to the Cutoff Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(x) a A Compliance Certificate calculated on a as of December 31, 2004 (giving pro forma basis for effect to the Borrower’s fiscal quarter ending March 31financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Closing Date), 2019and 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 Disbursement Instruction Agreement effective as A copy of each of the Agreement Datedocuments, 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 letter from the Fee Letter;agent under the Existing Credit Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof; and
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request.; and
(b) there In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, budgets and 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;
(cii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the Borrower, the other Loan Parties The Borrower and the other 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, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which 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
(eiv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the Borrower and each other Loan Party shall have provided all information requested 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 ActLoan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Heritage Property Investment Trust Inc), Credit Agreement (Heritage Property Investment Trust Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the 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 executed by the Borrower and the Florida Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms applicable provisions of Section 2.12(a) 2.11., and the Swingline Note executed by the Borrower;
(iii) The Subsidiary the Guaranty executed by Holdings, each Subsidiary that owns or leases a Collateral Property as of the applicable parties theretoEffective Date and each Material Subsidiary (other than any Exempt Subsidiary) as of the Effective Date;
(iv) an opinion or opinions of counsel to the Borrower and such other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders Lenders, addressing the matters set forth 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%)Exhibit H;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party;
(vi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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 the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of BorrowingBorrowings, Notices of Swingline Borrowing Borrowings, Notices of Continuation and requests for Letters of Credit, Notices of Conversion and Notices to request the issuance of ContinuationLetters of Credit;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a certificate from a Responsible Officer of the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects and (y) immediately after giving effect to the transactions contemplated by this Agreement, no Default or Event of Default shall exist;
(x) evidence of the payment of all Fees then due and payable under Section 3.8., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(xi) a Borrowing Base Certificate calculated as of the 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 effective as of the Agreement Effective Date;
(xii) a Compliance Certificate calculated as of June 30, 2006 (giving pro forma effect to the Fee Letterfinancing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xiii) evidence that letters from the Fees, if any, then due administrative agent under each Existing Credit Agreement providing information regarding the payment in full of amounts outstanding under such Existing Credit Agreement and payable under Section 3.5, together with providing for the termination thereof and the release of all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and Liens securing any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paidobligations owing thereunder;
(xiv) all of the items required to be delivered under Sections 4.1. and 4.2. of the Existing Credit Agreement with respect to each 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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request.; and
(b) there In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning Holdings, the Borrower Borrower, the other Loan Parties and its the other 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;
(cii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) Holdings, the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which 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 any Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
(c) When all of the conditions contained in the immediately preceding subsections (a) and (b) have been satisfied or waived in accordance with the terms hereof, the Agent shall promptly notify the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot ActLenders thereof.
Appears in 2 contracts
Sources: Credit Agreement (Morgans Hotel Group Co.), Credit Agreement (Morgans Hotel Group Co.)
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, this Agreement is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding other than any Lender that has requested that it not receive Notesa Note) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower2.10.(a);
(iii) The Subsidiary the Guaranty executed by each of the applicable parties theretoGuarantors, if any, initially required to be a party thereto pursuant to Section 7.13.;
(iv) an opinion of S▇▇▇▇▇▇▇ & Worcester LLP, and an opinion of S▇▇▇ ▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to covering such matters as 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%)Agent may reasonably request;
(v) 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, authorized to execute and deliver on behalf of the Borrower Notices the Notice of Borrowing, Notices of Swingline Borrowing and requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Compliance Certificate calculated as of the Cutoff Date;
(x) a Compliance Certificate calculated Effective Date on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 20192017;
(xix) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiixi) the Fee Letter[intentionally omitted];
(xiiixii) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xivxiii) 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 Letter executed by the Administrative Agent indicating that there are no liens of record on such property other than Permitted Liens;
(xvi) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower certifying that the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence theretoBorrower; and
(xixxiv) such other documents, agreements and instruments as the 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 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 (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) the Borrower, the other Loan Parties Borrower and the other 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, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which could not reasonably be likely to (x) have a Material Adverse Effect, or (y) 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;
(e) there shall not have occurred or exist any material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents; and
(ef) the Borrower and each other Loan Party shall have provided all information requested in writing by the Administrative Agent and each Lender at least five Business Days prior to the Effective Date in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence fund their respective portions of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, Borrower payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms applicable provisions of Section 2.12(a) and the Swingline Note executed 2.10 (which Notes shall be promptly forwarded by the BorrowerAgent to the applicable Lender);
(iii) The Subsidiary Guaranty executed by each Guarantor existing as of the applicable parties theretoEffective Date;
(iv) an A favorable opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may requestObligors, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to the Administrative Agent; providedLenders, 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 addressing 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%)matters as Agent may reasonably require;
(v) The Governing Documents of the certificate Borrower, each Guarantor and each general partner, managing member (or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if anyPerson performing similar functions) of each Loan Party such Persons certified as of a recent date by the Secretary of State of the state State of formation of such Loan Partythe applicable Person;
(vi) a certificate of A good standing (or certificate of similar meaning) with respect to the Borrower, each Loan Party Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Loan Party Person is organized, in which the Unencumbered Assets owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(vii) a A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower, each Loan Party with respect Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of such Loan Party or other Persons authorized to execute and deliver the Loan Documents to which such Loan Party any of them is a party, party and in the case of the Borrower, authorized to execute and deliver on behalf officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing and requests for Letters of Credit, Notices of Conversion Continuation and Notices of ContinuationConversion;
(viii) copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of each Loan Party such Persons of (A) the by-laws of such Loan Partyall partnership, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (Bcomparable) all corporate, partnership, member or other necessary action taken by such Loan Party Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(ix) a Borrowing Base Certificate calculated as of The Fees then due and payable under Section 3.6, and any other Fees and invoiced expenses payable to the Cutoff Agent and the Lenders on or prior to the Effective Date;
(x) a A pro forma Compliance Certificate calculated on a pro forma basis for as of September 30, 2011, after giving effect to the Borrower’s fiscal quarter ending March 31, 2019Loan;
(xi) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate signed by a Responsible Officer of the Borrower certifying that each Property to be treated as an Unencumbered Asset on the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence theretoEffective Date satisfies all of the requirements for an Unencumbered Asset set forth in the definition thereof; and
(xixxii) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request.
(b) there In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Borrower, the other Obligors, and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Effective Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower or any other Loan Party Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(diii) the The Borrower, the other Loan Parties Obligors and the other their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any Loan Party other Obligor is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which 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 Obligor to fulfill their respective obligations under the Loan Documents to which it is a party; and
(eiv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the Borrower and each other Loan Party shall have provided all information requested 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 ActLoan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (Wells Real Estate Investment Trust Ii Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower);
(iii) The Subsidiary Guaranty and Hazardous Materials Indemnity Agreement executed by the applicable parties thereto;
(iv) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may 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%);
(v) 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 NAI-1502661059v7 70 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, authorized to execute and deliver 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;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) 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, 20192017;
(xi) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xixxvii) such other documents, agreements and instruments as the 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 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 (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially NAI-1502661059v7 71 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;
(d) 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Sources: Credit Agreement (LGI Homes, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a) Notes and the Swingline Note executed by the BorrowerBorrower payable to the Swingline Lender to the extent that it has requested that it receive Notes, and, in each case, complying with the terms of Section 2.12.(a);
(iii) The Subsidiary the Guaranty executed by each Subsidiary Guarantor, the applicable Parent and each other Required Guarantor;
(i) the Pledge Agreement, executed by each of the Parent, Borrower and each Subsidiary Guarantor party thereto from time to time and (ii) each other Security Document, executed by the parties thereto;
(ivv) an opinion letter of D▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may request, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory acceptable 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%);
(vvi) 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;
(vivii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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;
(viiviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viiiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ixx) a Borrowing Base Certificate calculated original stock certificates or other certificates evidencing the certificated Equity Interests, as of applicable, pledged pursuant to the Cutoff DateSecurity Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;
(xxi) evidence of property, business interruption and liability insurance covering each Eligible Property, evidence of payment of all insurance premiums for the current policy year of each policy (with appropriate endorsements naming the Administrative Agent as lender’s loss payee on all policies for property hazard insurance and as additional insured on all policies for liability insurance), in each case, in form and substance reasonably acceptable to the Administrative Agent, and if requested by the Administrative Agent, copies of such insurance policies;
(xii) any other documents reasonably requested thereby or as required by the terms of the Security Documents to perfect or evidence its security interest in the Collateral;
(xiii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 6.1.(b) through (f) and Section 6.2 have been satisfied;
(xiv) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31September 30, 20192021;
(xixv) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiixvi) evidence that all indebtedness, liabilities or obligations owing by the Fee LetterLoan Parties under the Existing Credit Facilities shall have been paid in full and all Liens securing such indebtedness, liabilities or other obligations have been released;
(xiiixvii) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate copies of all Specified Derivatives Contracts in existence on the Borrower certifying that the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence theretoAgreement Date; and
(xix) such other documents, agreements and instruments as the 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 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 (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) 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, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(e) the initial public offering of the Equity Interests of the Parent, pursuant to a prospectus and Form S-1 registration statement provided to the Administrative Agent and the Lenders, prior to the date hereof (the “Equity Offering”), shall have been completed on terms and conditions acceptable to the Administrative Agent, including, without limitation, the Parent’s receipt of gross cash proceeds of the Equity Offering in an aggregate amount not less than $200,000,000, and the capital structure and corporate structure of the Parent and its Subsidiaries shall be reasonably acceptable to the Administrative Agent;
(f) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and antiAnti-money laundering rules and regulationsMoney Laundering Laws, including without limitation, the Patriot Act; and
(g) each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as hereunder on or after the making of a Loan or the issuance of a Letter of Credit, Agreement Date is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower);
(iii) The Subsidiary Guaranty executed by the applicable parties thereto[reserved];
(iv) an opinion of outside counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to covering such matters as 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%)Agent may reasonably request;
(v) 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 incorporation or 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 or incorporation 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 EffectPerson;
(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, authorized to execute and deliver 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;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base an Unencumbered Asset Certificate calculated as of the Cutoff DateDecember 31, 2021;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March December 31, 20192021;
(xi) a Disbursement Instruction Agreement effective as Closing Certificate substantially in form of Exhibit T, executed on behalf of the Agreement DateBorrower by an authorized officer of the Borrower;
(xii) the Fee Letter[reserved];
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent Agent, the Lead Arrangers and any of the Lenders, including without limitation, the reasonable fees and expenses of counsel to the Administrative AgentAgent invoiced to the Borrower at least 2 Business Days prior to the Agreement Date, have been paid (or substantially concurrently with the first Credit Event will be paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xixxiv) such other documents, agreements and instruments as the 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 business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders by or on behalf of the Borrower prior to the Agreement Date in connection with the transactions contemplated by this Agreement that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which is reasonably likely to be adversely determined, and, if adversely determined, could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) the Borrower, Borrower and 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(e) the Lenders shall have completed their accounting, business, financial, legal, tax, environmental and regulatory due diligence investigation of the Borrower, the Guarantors and the Unencumbered Assets in scope, and with results, satisfactory to the Lenders in their sole discretion; and
(ef) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender at least 2 Business Days prior to the Agreement Date in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot ActAct and if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver to each Lender that so requests at least 5 days prior to the Agreement Date, in a form acceptable to such Lender, a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes A Note executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) a Note, and complying with the terms of of, Section 2.12(a) and the Swingline Note executed by the Borrower2.11(a);
(iii) The Subsidiary the Guaranty executed by the applicable parties theretoParent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1;
(iv) an opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders and in a form and substance reasonably 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%);
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument document (if any) of each Loan Party certified as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of such Loan PartyParty (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the “Existing Credit Agreement” (as defined in the Revolving Credit Agreement) has not been modified or amended and remains in full force and effect, a certificate of the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be delivered in lieu of delivery of a current certified copy of such document);
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such 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, authorized to execute and deliver 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;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity (except that, if any such document delivered to Administrative Agent pursuant to the “Existing Credit Agreement” (as defined in the Revolving Credit Agreement) has not been modified or amended and remains in full force and effect, a certificate so stating may be delivered in lieu of delivery of another copy of such document) and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as evidence of the Cutoff Dateinsurance required under Section 8.5;
(x) a Compliance Certificate calculated on a pro forma basis certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Borrower’s fiscal quarter ending March 31, 2019Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate calculated as of September 30, 2012;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been 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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the Borrower, Borrower and 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, conflict with or violation of (A) any Applicable Law or (B) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(eiv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders MBF shall not be obligated to effect or permit the occurrence of the purchase any Eligible Mortgage Loan under this Agreement until MBF shall have first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of received the following conditions precedent:
(a) The Administrative Agent shall have received documents, each of the following, which shall be in form and substance satisfactory to MBF, except to the Administrative Agentextent waived by MBF in its sole discretion:
(ia) counterparts of this Agreement and the Seller’s Power of Attorney, each duly executed by each of the parties heretoSeller;
(iib) Revolving Notes executed by one or more certificates of Seller’s corporate secretary attesting to certain factual matters, certifying the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms text of Section 2.12(a) and the Swingline Note executed by the Borrower;
(iii) The Subsidiary Guaranty executed by the applicable parties thereto;
(iv) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may 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%);
(v) the certificate or Seller’s 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 incorporation and bylaws or other governing charter documents, certifying the Secretary of State text 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 applicableresolution(s) 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 the board of incumbency signed by the Secretary directors or Assistant Secretary (or other individual performing similar functions) managers 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, authorized to execute and deliver 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;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize Seller authorizing the execution, delivery and performance of this Agreement, and certifying the Loan Documents incumbency and the signatures of those officers of Seller authorized to which it is a party;
(ix) a Borrowing Base Certificate calculated as execute and deliver, on behalf of the Cutoff Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31Seller, 2019;
(xi) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Feesthis Agreement, if anyeach Mortgage Note endorsement, then due each Assignment in Blank, and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xiv) with respect to each Borrowing Base Property identified on Schedule 4.1, each of the items referred to in Section 6.3 required instruments or documents to be executed and delivered in connection with any Borrowing Base Property;
pursuant hereto (xv) UCC, tax, judgment and lien search reports with respect MBF being entitled 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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders rely thereon until a new certificate has been furnished to MBF upon which MBF shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.
(b) there shall not have occurred or become known thereafter be entitled 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 Effectrely);
(c) no litigationfinancial statements of Seller (and, actionif applicable, suitits Subsidiaries, investigation on a consolidated basis) containing a balance sheet as of the most recent fiscal year-end of Seller (the “Statement Date”) and related statements of income, changes in stockholders’ equity and cash flows for the period ended on the Statement Date, all prepared in accordance with GAAP applied on a basis consistent with prior periods and audited by PriceWaterhouseCoopers LLP or other arbitralindependent certified public accountants of regional or national standing approved by MBF (such approval not to be unreasonably withheld, administrative delayed or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a partyconditioned);
(d) such other financial statements, public record search reports, legal opinions and other documents and statements as MBF may reasonably require under 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Actcircumstances.
Appears in 1 contract
Sources: Multifamily and Health Care Mortgage Loan Repurchase Agreement (Municipal Mortgage & Equity LLC)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that which has requested that it not receive Notes) a Note and complying with the terms applicable provisions of Section 2.12(a) and the Swingline Note executed by the Borrower2.8;
(iii) The Subsidiary the Guaranty executed by the applicable parties theretoParent;
(iv) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may 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%);
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party;
(viv) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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 the 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 Effecthas its principal place of business;
(viivi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing and requests for Letters of Credit, Notices of Conversion Continuation and Notices of ContinuationConversion;
(viiivii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties, addressed to the Agent and the Lenders, in form reasonably satisfactory to the Agent;
(ix) a Borrowing Base Certificate calculated as of the Cutoff Fees then due and payable under Section 3.6., and any other Fees payable to the Agent and the Lenders on or prior to the Effective Date;
(x) a Compliance Certificate calculated on a as of the Effective Date (giving pro forma basis for effect to the Borrower’s fiscal quarter ending March 31, 2019financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) a Disbursement Instruction Agreement effective as disbursement statement setting forth in reasonable detail the application of the Agreement initial Loans being funded on the Effective Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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 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;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(diii) the BorrowerParent, the other Loan Parties Borrower and the its 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, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound; and
, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (eA) 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 and each or any other Loan Party shall have provided all information requested by to fulfill its obligations under the Administrative Loan Documents to which it is a party or the ability of the Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Actexercise its remedies hereunder.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent::
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:: LEGAL02/42113124v8
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding any other than a Lender that has requested that it not to receive Notesa Revolving Note) and complying with the terms applicable provisions of Section 2.12(a) 2.11., and the Swingline Note Notes executed by the Borrower;;
(iii) The Subsidiary Guaranty executed by the applicable parties thereto;Parent and each Subsidiary to which either of the conditions set forth in Section 7.12.(a) applies as of the Effective Date;
(iv) an opinion A Disbursement Instruction Agreement effective as of the Agreement Date;
(v) Customary opinions of counsel to the Borrower and such other Loan Parties as the Administrative Agent may requestParties, 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 Yorkand, 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%)Lenders;
(vvi) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the Secretary of State (or comparable official) of the state of formation of such Loan Party;;
(vivii) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State (or comparable official) of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (or comparable official and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viiviii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing Borrowings, Notices of Continuation and requests for Letters of Credit, Notices of Conversion and Notices to request the issuance of ContinuationLetters of Credit;
(viiiix) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ax) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (By) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as of the Cutoff Date;;
(x) a Compliance Certificate calculated on a pro forma basis for If requested by the Borrower’s fiscal quarter ending March 31Administrative Agent, 2019certificates of insurance evidencing the existence of all insurance required to be maintained by Loan Parties pursuant to the Agreement, and the Administrative Agent shall be reasonably satisfied with the type and extent of such coverage;
(xi) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, The Fees then due and payable under Section 3.53.6., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel other Fees payable to the Administrative Agent, have been paidthe Titled Agents and the Lenders on or prior to the Effective Date; LEGAL02/42113124v8
(xii) A Compliance Certificate calculated as of June 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);
(xiii) The documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Corruption Laws and Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, at least five (5) Business Days prior to the Effective Date;
(xiv) with respect A Beneficial Ownership Certification in relation to each Borrowing Base Property identified on Schedule 4.1, each of Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the items referred Beneficial Ownership Regulation at least five (5) Business Days prior to in Section 6.3 required to be delivered in connection with any Borrowing Base Property;the Effective Date; and
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request.
(b) there 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 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 the other 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;
(cii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(diii) the BorrowerThe Parent, the other Loan Parties Borrower and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound; and
, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (eA) 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 Parent, the Borrower and each or any other Loan Party shall have provided all information requested by to fulfill its obligations under the Administrative Agent and each Lender in order Loan Documents to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.which it is a party.
Appears in 1 contract
Sources: Credit Agreement (CubeSmart, L.P.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms applicable provisions of Section 2.12(a) and the Swingline Note executed by the Borrower2.8.;
(iii) The Subsidiary the Facility Guaranty executed by the applicable parties theretoParent and each other Person that the Borrower elects to make a Guarantor on the Effective Date;
(iv) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may requestParties, 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 executionLenders, authority and delivery opinions with respect to any Subsidiary Guarantor that is organized under addressing 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%)matters set forth in Exhibit F;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party, or, in the case of the Parent only, certified by the Secretary or Assistant Secretary of the Parent;
(vi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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 the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party or its constituent partners or members authorized to execute and deliver the Loan Documents to which such Loan Party is a partyparty and, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower Notices then authorized to deliver the Notice of Borrowing, Notices of Swingline Borrowing and requests for Letters of Credit, Notices of Conversion Continuation and Notices of ContinuationConversion;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as certificate from a Responsible Officer of the Cutoff DateParent and the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects and (y) immediately after giving effect to the transactions contemplated by this Agreement, no Default or Event of Default shall exist;
(x) a Compliance Certificate calculated the Fees then due and payable under Section 3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on a pro forma basis for or prior to the Borrower’s fiscal quarter ending March 31, 2019Effective Date;
(xi) a Disbursement Instruction Agreement effective Compliance Certificate calculated as of March 31, 2008 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xii) the Fee Letter;
(xiii) evidence that Notice of Borrowing from the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable Borrower for the Loans indicating how the proceeds thereof are to be made available to the Administrative Agent Borrower, and if any of the Lenders, including without limitationLoans initially are to be LIBOR Loans, the fees and expenses of counsel to the Administrative Agent, have been 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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower certifying that the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence theretoInterest Periods therefore; and
(xixxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request.; and
(b) there In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status concerning the Parent or its Subsidiaries since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Parent 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;
(cii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the BorrowerThe Parent, the other Loan Parties Borrower and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Parent, the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which 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 Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the Borrower and each other Loan Party shall have provided all information requested 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 ActLoan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (Piedmont Office Realty Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the 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 executed by the Borrower, payable to each applicable Lender (but excluding other than any Lender that has requested that it not receive Notesa Revolving Note) and complying with the terms of Section 2.12(a2.10.(a) and the Swingline Note executed by the Borrower;
(iii) The Subsidiary the Guaranty executed by each of the applicable parties Guarantors initially to be a party thereto;
(iv) an opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, and an opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to covering such matters as 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%)Agent may reasonably request;
(v) 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, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Compliance Certificate calculated as of the Cutoff Date;
(x) a Compliance Certificate calculated Effective Date on a pro forma basis for the Borrower’s fiscal quarter ending March 31June 30, 20192011;
(xix) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiixi) evidence that all indebtedness, liabilities or obligations owing by the Fee LetterLoan Parties under the Existing Credit Agreement shall have been paid in full;
(xiiixii) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xivxiii) A copy of (y) all Operating Agreements, all Ancillary Agreements, the Business Management Agreement, the Property Management Agreement, in each case certified as true, correct and complete by the chief operating officer or chief financial officer of the Borrower, and (z) an Operating Agreement Abstract with respect to each Borrowing Base Property identified on Schedule 4.1, each of Operating Agreement for the items referred to in Section 6.3 required to be delivered in connection with any Borrowing Base PropertyUnencumbered Assets;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xixxiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.; and
(b) In the good faith judgment of the Administrative Agent:
(i) there 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;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the Borrower, the other Loan Parties Borrower and the other 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which could 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;
(eiv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)); and
(v) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and anti-money laundering rules and regulations, including without limitation, adversely affect the Patriot Acttransactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a) Notes and the Swingline Note executed by the BorrowerBorrower payable to the Swingline Lender to the extent that it has requested that it receive Notes, and, in each case, complying with the terms of Section 2.12.(a);
(iii) The Subsidiary the Guaranty executed by each Subsidiary Guarantor, the applicable Parent and each other Required Guarantor;
(iv) (i) the Pledge Agreement, executed by each of the Parent, General Partner, ▇▇▇▇▇▇▇▇ and each Subsidiary Guarantor party thereto from time to time and (ii) each other Security Document, executed by the parties thereto;
(ivv) an opinion letter of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may request, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory acceptable 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%);
(vvi) 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;
(vivii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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;
(viiviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viiiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ixx) a Borrowing Base Certificate calculated original stock certificates or other certificates evidencing the certificated Equity Interests, as of applicable, pledged pursuant to the Cutoff DateSecurity Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;
(xxi) evidence of property, business interruption and liability insurance covering each Eligible Property, evidence of payment of all insurance premiums for the current policy year of each policy (with appropriate endorsements naming the Administrative Agent as lender’s loss payee on all policies for property hazard insurance and as additional insured on all policies for liability insurance), in each case, in form and substance reasonably acceptable to the Administrative Agent, and if requested by the Administrative Agent, copies of such insurance policies;
(xii) any other documents reasonably requested thereby or as required by the terms of the Security Documents to perfect or evidence its security interest in the Collateral;
(xiii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 6.1.(b) through (e) and Section 6.2. have been satisfied;
(xiv) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31September 30, 2019;
(xixv) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiixvi) evidence that all indebtedness, liabilities or obligations owing by the Fee LetterLoan Parties under the Existing Credit Facilities shall have been paid in full and all Liens securing such indebtedness, liabilities or other obligations have been released;
(xiiixvii) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate copies of all Specified Derivatives Contracts in existence on the Borrower certifying that the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence theretoAgreement Date; and
(xix) such other documents, agreements and instruments as the 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 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 (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) 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, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(e) the offering of the Equity Interests of the Parent, pursuant to an offering memorandum substantially similar to the draft thereof previously provided to the Administrative Agent and the Lenders, prior to the date hereof (the “Equity Offering”), shall have been completed on terms and conditions acceptable to the Administrative Agent, including, without limitation, the Parent’s receipt of gross cash proceeds of the Equity Offering in an aggregate amount not less than $175 million, and the capital structure and corporate structure of the Parent and its Subsidiaries shall be acceptable to the Administrative Agent;
(f) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and antiAnti-money laundering rules and regulationsMoney Laundering Laws, including without limitation, the Patriot Act; and
(g) each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: Credit Agreement (NETSTREIT Corp.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding other than any Lender that has requested that it not receive Notesa Note) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower2.8.(a);
(iii) The Subsidiary the Guaranty executed by each of the applicable parties Guarantors initially to be a party thereto;
(iv) an opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, and opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders and covering the matters set forth 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%)Exhibit H;
(v) 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, authorized to execute and deliver on behalf of the Borrower Notices the Notice of Borrowing, Notices of Swingline Borrowing and requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Compliance Certificate calculated as of the Cutoff Date;
(x) a Compliance Certificate calculated Effective Date on a pro forma basis for the Borrower’s fiscal quarter ending March 31ended September 30, 20192011;
(x) the Notice of Borrowing from the Borrower for the Loans indicating how the proceeds thereof are to be made available to the Borrower, and if any of the Loans initially are to be LIBOR Loans, the Interest Period therefor;
(xi) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.; and
(b) In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the Borrower, the other Loan Parties Borrower and the other 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which could 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;
(eiv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender may request in order to comply with applicable “know your customer” the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)); and
(v) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and anti-money laundering rules and regulations, including without limitation, adversely affect the Patriot Acttransactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (Government Properties Income Trust)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is are subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to each applicable Lender (but excluding other than any Lender that has requested that it not receive Notesa Note) and complying with the terms of Section 2.12(a2.11.
(a) and the Swingline Note executed by the Borrower;
(iii) The Subsidiary the Guaranty executed by each of the applicable parties Guarantors, if any, initially to be a party thereto;
(iv) an opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, and an opinion of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to covering such matters as 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%)Agent may reasonably request;
(v) 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, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Compliance Certificate calculated as of the Cutoff Date;
(x) a Compliance Certificate calculated Effective Date on a pro forma basis for the Borrower’s fiscal quarter ending March December 31, 20192017;
(xix) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xii) the Fee Letter;
(xiiixi) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xivxii) with respect to a copy of all Operating Agreements, all Ancillary Agreements, the Business Management Agreement, the Property Management Agreement, in each Borrowing Base Property identified on Schedule 4.1case certified as true, each correct and complete by the chief operating officer or chief financial officer 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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower certifying that the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence theretoBorrower; and
(xixxiii) such other documents, agreements and instruments as the 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 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 (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) the Borrower, the other Loan Parties Borrower and the other 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, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(f) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is and the effectiveness of the amendment and restatement of the Existing Credit Agreement, are subject to the satisfaction or waiver of the following conditions precedent:
: (a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
: (i) counterparts of this Agreement executed by each of the parties hereto;
; (ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding other than any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower;
2.11.(a); (iii) The Subsidiary the Guaranty executed by the applicable parties thereto;
Parent; (iv) an opinion of counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders and in a the form and substance satisfactory to the Administrative Agentset forth in Exhibit J; 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%);
(v) 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, authorized to execute and deliver on behalf of the Borrower Notices of Revolving Borrowing, Notices the Notice of Swingline Borrowing and Term Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
; (viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) 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 effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements and instruments as the 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 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 (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.- 73 - LEGAL02\42427047.v4
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent::
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent::
(i) counterparts of this Agreement executed by each of the parties hereto;;
(ii) Revolving Notes (or replacement Notes, as the case may be) of each Class executed by the Borrower, payable to each applicable Lender (but excluding any Lender of such Class that has requested that it not receive Notes) a Note of such Class, and complying with the terms of Section 2.12(a2.11.
(a) and the a replacement Swingline Note executed by the Borrower;;
(iii) The Subsidiary the Guaranty executed by the applicable parties Parent and each of the other Guarantors initially to be a party thereto;;
(iv) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to covering such matters as 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%)Agent may reasonably request;
(v) 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, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;;
(ix) 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 previous four calendar quarters ending March 31on June 30, 2019;2018;
(xix) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) [Reserved];
(xii) copies of all Material Contracts in existence on the Fee Letter;Agreement Date and either entered into or amended in any material respect after April 2, 2015;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;;
(xiv) with respect to each Borrowing Base Property identified on Schedule 4.1, each certificates of insurance evidencing the items referred to insurance then in Section 6.3 required to be delivered in connection with any Borrowing Base Property;
(xv) UCC, tax, judgment and lien search reports effect with respect to the Borrower Properties and each other Loan Party otherwise in all jurisdictions reasonably requested by the Administrative Agent indicating that there are no liens of record on such property other than Permitted Liens;compliance with Section 8.5.;
(xvi) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xixxv) such other documents, agreements and instruments as the 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 business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;materially adverse effect on the business, assets, liabilities, condition (financial or otherwise), results of operations or business prospects of the Parent, the Borrower and the Subsidiaries taken as a whole;
(c) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;;
(d) the Parent, the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(e) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents;
(f) the Borrower and each other Loan Party shall have provided all information reasonably requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and antiAnti-money laundering rules and regulationsMoney Laundering Laws, including without limitation, the Patriot Act.; and
(g) each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall, collectively, have delivered to the Administrative Agent, and any Lender requesting the same, one Beneficial Ownership Certification in relation to each such Loan Party or such Subsidiary, in each case, at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes, Tranche A Term Notes and Tranche B Term Notes executed by the Borrower, payable to each applicable Lender (but excluding any other than a Lender that has requested that it not to receive Notesa Revolving Note, a Tranche A Term Note or a Tranche B Term Note, as applicable) and complying with the terms applicable provisions of Section 2.12(a) 2.11., and the Swingline Note executed by the Borrower;
(iii) The Subsidiary Guaranty executed by the applicable parties theretoParent and each Subsidiary to which either of the conditions set forth in Section 7.12.(a) applies as of the Effective Date;
(iv) an A Transfer Authorizer Designation Form effective as of the Agreement Date;
(v) An opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may requestParties, 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 Yorkand, the Borrower shall not be required to deliver due executionLenders, authority and delivery opinions with respect to any Subsidiary Guarantor that is organized under addressing 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%)matters set forth in Exhibit K;
(vvi) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the Secretary of State (or comparable official) of the state of formation of such Loan Party;
(vivii) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State (or comparable official) of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (or comparable official and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viiviii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing Borrowings, Notices of Continuation and requests for Letters of Credit, Notices of Conversion and Notices to request the issuance of ContinuationLetters of Credit;
(viiiix) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ax) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (By) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as of the Cutoff Date;
(x) a Compliance Certificate calculated on a pro forma basis for If requested by the Borrower’s fiscal quarter ending March 31Administrative Agent, 2019certificates of insurance evidencing the existence of all insurance required to be maintained by Loan Parties pursuant to the Agreement, and the Administrative Agent shall be reasonably satisfied with the type and extent of such coverage;
(xi) a Disbursement Instruction Agreement effective as of The Fees then due and payable under Section 3.6., and any other Fees payable to the Agreement Administrative Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(xii) A Compliance Certificate calculated as of September 30, 2011 (giving pro forma effect to the Fee Letterfinancing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xiii) Evidence that all “Term Loans” (as defined in the Existing Credit Agreement) outstanding under the Existing Credit Agreement shall be repaid with the proceeds of the Tranche A Term Loans to be made by the Lenders hereunder on the Effective Date and evidence that the Fees, if any, then due and payable under Section 3.5, together with all other feesindebtedness, expenses and reimbursement amounts due and payable to liabilities or obligations owing by the Administrative Agent and any of Loan Parties under the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, Existing Credit Agreement shall have been paid;paid in full and all commitments thereunder are terminated; and
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request.
(b) there 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 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 the other 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;
(cii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(diii) the BorrowerThe Parent, the other Loan Parties Borrower and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound; and
, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (eA) 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 Parent, the Borrower and each or any other Loan Party shall have provided all information requested by to fulfill its obligations under the Administrative Agent and each Lender in order Loan Documents to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Actwhich it is a party.
Appears in 1 contract
Sources: Credit Agreement (CubeSmart, L.P.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of Term Loans on the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Effective Date is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement the Loan Documents and each other instrument, agreement, notice, certificate and document, including all exhibits and schedules thereto, reasonably requested by the Administrative Agent, each executed by each of the parties heretoBorrower, the Parent, the Guarantors, the Administrative Agent and the Lenders, as applicable;
(ii) Revolving Notes executed a copy of the Merger Agreement including all exhibits and schedules thereto and all other material agreements entered into in connection with the Merger and all exhibits, schedules and disclosure letters thereto, certified by the BorrowerBorrower as true, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) correct and complying with complete as of the terms of Section 2.12(a) and the Swingline Note executed by the BorrowerEffective Date;
(iii) The Subsidiary Guaranty executed by the applicable parties thereto;
(iv) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower Parent and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to covering the matters as 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%)Agent may reasonably request;
(viv) (A) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party (other than the Parent) certified as of a recent date by the Secretary of State of the state of formation of such Loan PartyParty and (B) the articles of incorporation of the Parent, after giving effect to the Merger, certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Parent;
(viv) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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;
(viivi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver 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;
(viiivii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as of the Cutoff Date;
(xviii) a Compliance Certificate calculated on a pro forma forma, projected combined basis for the Borrower’s and Equity One’s fiscal quarter ending March 31, 20192017;
(xiix) a Disbursement Instruction Agreement effective as of the Agreement Effective Date;
(xii) the Fee Letter;
(xiiix) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Lead Arrangers, the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xiv) 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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xixxi) such other documentsevidence that the Indebtedness outstanding under the Equity One Term Loan Agreement shall be refinanced, agreements and instruments as repaid, discharged or otherwise paid in full on the Effective Date; and
(b) In the good faith judgment of the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.:
(bi) 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 Parent, the Borrower, Equity One and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Effective Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Merger Agreement or the Loan Documents to which it is a party;
(diii) the BorrowerParent, the other Loan Parties Equity One and the other their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby Transactions without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which could not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain, enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, Equity One, the Borrower or any other Loan Party to fulfill its obligations under the Merger Agreement or the Loan Documents to which it is a party;
(iv) no Default or Event of Default shall exist as of or immediately following the Effective Date or would existing immediately after giving effect to the Transactions;
(v) the Specified Representations and Specified Merger Agreement Representations shall be true and correct in all respects; and
(evi) the Parent, the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and antithe USA Patriot Act (Title III of Pub. L. 107-money laundering rules and regulations56 (signed into law October 26, including without limitation2001)); and
(A) Prior to, or substantially simultaneously with the occurrence of the Effective Date, the Patriot ActMerger shall be consummated in all material respects in accordance with the terms of the Merger Agreement (without giving effect to any amendments or waivers thereto that are materially adverse to the Lenders without the consent of the Lead Arrangers, such consent not to be unreasonably withheld, conditioned or delayed); provided that any change to the definition of “Eagle Material Adverse Effect” or “Raven Material Adverse Effect” contained in the Merger Agreement shall be deemed materially adverse to the Lenders and shall require the consent of the Lead Arrangers and (B) the Lead Arrangers shall have received documentation evidencing the Contribution, which shall be in form and substance reasonably satisfactory to the Lead Arrangers (the “Contribution Documentation”) and the Contribution shall be effected substantially simultaneously with the Merger in all respects in accordance with the Contribution Documentation.
(d) (A) Since December 31, 2015, there shall not have occurred any material adverse condition or material adverse change in or affecting, or the occurrence of any circumstance or condition that could reasonably be expected to result in a material adverse change in, or could reasonably be expected to have a Material Adverse Effect on, the business, assets, liabilities, financial condition or results of operations of the Parent, the Borrower, Equity One and their respective subsidiaries, taken as a whole and (B) since the date of the Merger Agreement, no “Eagle Material Adverse Effect” or “Raven Material Adverse Effect” (as each such term is defined in the Merger Agreement) shall have occurred. Unless set forth in writing to the contrary, the making of the Term Loan by each Lender shall constitute a certification by such Lender to the Administrative Agent and the other Lenders that the conditions precedent for the Term Loan set forth in Section 5.1. that have not previously been waived by the Lenders in accordance with the terms of this Agreement have been satisfied as of the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunderhereunder on or after the Agreement Date, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, in each case, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(aSection
(a) and the Swingline Note executed by the Borrower, in each case, to the extent requested by any ▇▇▇▇▇▇;
(iii) The Subsidiary Guaranty executed by the applicable parties thereto;
(iv) an opinion of outside counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to covering such matters as 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%)Agent may reasonably request;
(viv) 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 incorporation or 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);
(viv) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation or incorporation of each such 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 EffectPerson;
(viivi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viiivii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ixviii) a Borrowing Base an Unencumbered Asset Certificate calculated as of December 31, 2022 and including a pro forma listing of Unencumbered Assets as of December 31, 2022, after giving effect to the Cutoff Acquisition and the other transactions occurring on the Agreement Date;
(xix) a Compliance Certificate calculated on a pro forma basis for after giving effect to the Borrower’s fiscal quarter ending March 31, 2019;
(xi) a Disbursement Instruction Agreement effective as of Acquisition and the other transactions occurring on the Agreement Date;
(x) a Closing Certificate substantially in form of Exhibit T, executed on behalf of the Borrower by an authorized officer of the Borrower;
(xi) evidence that the Existing Term Loans under the Existing Term Loan Agreement have been paid in full and all Liens and guarantees with respect thereto have been terminated and released (or substantially concurrently with the first Credit Event will be so paid, terminated and released), in form and substance reasonably satisfactory to the Administrative Agent;
(xii) evidence that the Fee Letter;Existing Revolving Loans and Existing Revolving Commitments under the Existing Revolver Agreement have been paid in full and all Liens and guarantees with respect thereto have been terminated and released (or substantially concurrently with the first Credit Event will be so paid, terminated and released), in form and substance reasonably satisfactory to the Administrative Agent; and
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent Agent, the Lead Arrangers and any of the Lenders, including without limitation, the reasonable fees and expenses of counsel to the Administrative AgentAgent invoiced to the Borrower at least 2 Business Days prior to the Agreement Date, have been paid (or substantially concurrently with the first Credit Event will be paid);
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements and instruments as the 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 business projectionsSeptember 15, 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 2022 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 is reasonably likely to be adversely determined, and, if adversely determined, could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) the Borrower, Borrower and 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and, 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 or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(e) the Lenders shall have completed their accounting, business, financial, legal, tax, environmental and regulatory due diligence investigation of the Borrower, the Guarantors and the Unencumbered Assets in scope, and with results, satisfactory to the Lenders in their sole discretion;
(f) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender at least 2 Business Days prior to the Agreement Date in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot ActAct and if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver to each Lender that so requests at least 5 days prior to the Agreement Date, in a form acceptable to such Lender, a Beneficial Ownership Certification in relation to the Borrower; and
(g) The Acquisition shall be consummated immediately prior to, or substantially concurrently with, the funding of the 2023 Term Loans and the availability of the Revolving Commitments in all material respects in accordance with the Acquisition Agreement.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding other than any Lender that has requested that it not receive Notesa Revolving Note) and complying with the terms of Section 2.12(a2.10.(a) and the Swingline Note executed by the Borrower;
(iii) The Subsidiary the Guaranty executed by each of the applicable parties Guarantors initially to be a party thereto;
(iv) an opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, and an opinion of ▇▇▇▇ ▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to covering such matters as 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%)Agent may reasonably request;
(v) 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, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Compliance Certificate calculated as of the Cutoff Date;
(x) a Compliance Certificate calculated Effective Date on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 20192017;
(xix) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiixi) the Fee Letter[intentionally omitted];
(xiiixii) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xivxiii) 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 Letter executed by the Administrative Agent indicating that there are no liens of record on such property other than Permitted Liens;
(xvi) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower certifying that the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence theretoBorrower; and
(xixxiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.; and
(b) In the good faith judgment of the Administrative Agent:
(i) there 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;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the Borrower, the other Loan Parties Borrower and the other 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which could 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;
(eiv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)); and
(v) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and anti-money laundering rules and regulations, including without limitation, adversely affect the Patriot Acttransactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable requesting Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower2.11.(a);
(iii) The Subsidiary Guaranty the Guaranty, the Equity Pledge Agreement and each of the other Security Documents required to be executed by the applicable parties Parent and each of the other Loan Parties initially to be a party thereto, together with:
(A) certificates and instruments representing the Collateral constituting securities accompanied by undated stock powers or instruments of transfer executed in blank,
(B) proper UCC financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Documents covering the Collateral,
(C) certified copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business or that the Administrative Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Security Documents (other than Permitted Liens),
(D) any deposit account control agreements and securities account control agreements, in each case as referred to in the Perfection Certificate and duly executed by the appropriate parties, to the extent required to perfect the security interest in any material deposit account or securities account (as determined by the Administrative Agent or any Initial Lender in its reasonable discretion) (provided that to the extent that such control agreements are not completed after your use of commercially reasonable efforts to do so, then such control agreements shall not constitute a condition precedent under this clause (D) on the Effective Date, but instead shall be required to be delivered on or before the 60th day following the Effective Date (or such later date as the Initial Lenders shall determine)),
(E) a Perfection Certificate, in substantially the form of Exhibit P, duly executed by each of the Loan Parties, and
(F) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Documents has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements);
(iv) an opinion of legal counsel to the Borrower and such the other Loan Parties as Parties, reasonably satisfactory to the Administrative Agent may requestAgent, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to covering such matters as 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%)Agent may reasonably request;
(v) 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 the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver on behalf of the Borrower Notices of Revolving Borrowing, Notices of Swingline Borrowing and Term Loan Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as of the Cutoff Date;
(x) a Compliance Certificate calculated on a pro forma basis for the BorrowerParent’s fiscal quarter ending March 31June 30, 20192016, giving pro forma effect to the making of any Loan to be made on the Effective Date, which Compliance Certificate shall include the calculations described in the conditions precedent set forth in clauses (m) and (n) below;
(xix) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) a Maximum Loan Availability Certificate, calculated as of the Effective Date; provided, however, that Adjusted Borrowing Base NOI shall be calculated on a pro forma basis giving effect to the Transactions as of the Parent’s fiscal quarter ending June 30, 2016;
(xii) the Fee LetterNotice of Term Loan Borrowing executed by the Borrower with respect to the Term Loans to be made on the Effective Date;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent Agent, the Joint Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paidpaid to the extent invoiced at least one Business Day prior to the Effective Date;
(xiv) Appraisals of all Borrowing Base Properties, together with all other due diligence reasonably requested by the Administrative Agent with respect to each Borrowing Base Property identified Property, including, the items set forth on Schedule 4.1, each of the items referred to in Section 6.3 required to be delivered in connection with any Borrowing Base Property6.1. hereto;
(xv) UCC, tax, judgment copies of the form of Tenant Lease to be used for each Property from the Effective Date until the Revolving Termination Date and lien search reports each Tenant Lease entered into as of the Agreement Date with respect to the Borrower and each other Loan Party in all jurisdictions reasonably such Property requested by the Administrative Agent indicating that there are no liens of record on such property other than Permitted Liensor any Initial Lender;
(xvi) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 8.5. (including, without limitation, both property and liability insurance) is in full force and effect;
effect and stating that the coverage shall not be cancelable or materially changed without ten (xvii10) Beneficial Ownership Certifications from the Borrower and such other Persons as days prior written notice to the Administrative Agent of any cancellation for nonpayment of premiums, and Lenders shall reasonably require;
not less than thirty (xviii30) A certificate days prior written notice to the Administrative Agent of any other cancellation or any modification (including a reduction in coverage), together with appropriate evidence that the Administrative Agent, for its benefit and the benefit of the Borrower certifying Lenders, the Issuing Banks, the Specified Derivatives Providers and the Specified Cash Management Banks is named as a mortgagee lender’s loss payee and additional insured, as appropriate, on all insurance policies that the Loans are permitted under Borrower, any Senior Notes Indebtedness and/or Loan Party or any Senior Notes Indenture relating thereto together other Subsidiary actually maintains with supporting evidence theretorespect to any Property and improvements on such Property; and
(xixxvii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, Agent may reasonably request.; and
(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 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[Intentionally Omitted];
(c) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party[Intentionally Omitted];
(d) the Borrower, the other Loan Parties all governmental and the other Subsidiaries third-party consents and all equity holder and board of directors (or comparable entity management body) authorizations with respect to this Agreement shall have received all approvals, consents and waivers, been obtained and shall have made or given all necessary filings be in full force and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; andeffect;
(e) the Borrower and each other Loan Party Lead Arrangers shall have provided received, at least 20 business days prior to the Effective Date, all documentation and other information requested required by the Administrative Agent and each Lender in order to comply with regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation, the Patriot PATRIOT Act, that has been requested at least 25 business days prior to the Effective Date;
(f) the assumption or contribution of all Indebtedness of the Merger Contributors and their affiliates by the Parent and its Subsidiaries to the extent described in the Merger Agreement as in effect on April 28, 2016 (and payment of all fees related thereto) shall have occurred and be in full force and effect;
(g) the Spin-Off (as further described in any Registration Statement on Form 10 filed by the Parent with the Securities and Exchange Commission in respect thereof, and any related separation and distribution agreement (the “Distribution Agreement”)) shall have been consummated or shall be consummated substantially contemporaneous with the initial funding hereunder (whether by way of an escrow closing hereof or otherwise; and provided that the Spin-Off shall be deemed to occur substantially contemporaneously with the initial funding hereunder, and this condition shall be deemed satisfied, if Clinic or Pharmacy shall have delivered to the Lead Arrangers an officer’s certificate stating that such officer in good faith expects the Spin-Off to be consummated within three (3) Business Days following such initial funding; it being understood that, notwithstanding the foregoing, the failure of the Spin-Off to occur on or before such time shall constitute an Event of Default hereunder) on terms and conditions acceptable to the Lead Arrangers;
(h) The Borrower shall, as of the Effective Date (after giving effect to the Transactions and the borrowings hereunder as of the Effective Date), have unrestricted and unencumbered cash (other than Liens in favor of the Administrative Agent) on its consolidated balance sheet equal to at least $150,000,000 (minus the aggregate amount of certain fees paid by the Borrower concurrently with the Effective Date, which amount deducted shall in no event exceed $5,000,000);
(i) As of the Effective Date there shall be no Revolving Loans;
(j) Subject to exceptions acceptable to the Lead Arrangers (x) since December 31, 2015, there shall not have occurred a Parkway Material Adverse Effect, and (y) since December 31, 2015, there shall not have occurred a Cousins Material Adverse Effect.
Appears in 1 contract
Sources: Credit Agreement (Parkway, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a the Term Loan or the issuance of a Letter of Credithereunder, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The 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 executed by the Borrower, Borrower payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a) and the Swingline Note executed which Notes shall be promptly forwarded by the BorrowerAgent to the applicable Lender);
(iii) The Subsidiary Guaranty executed by each Guarantor existing as of the applicable parties theretoEffective Date;
(iv) an A favorable opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may requestObligors, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to the Administrative Agent; providedLenders, 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 addressing 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%)matters as Agent may reasonably require;
(v) The Governing Documents of the certificate Borrower, each Guarantor and each general partner, managing member (or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if anyPerson performing similar functions) of each Loan Party such Persons certified as of a recent date by the Secretary of State of the state State of formation of such Loan Partythe applicable Person;
(vi) a certificate of A good standing (or certificate of similar meaning) with respect to the Borrower, each Loan Party Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Loan Party Person is organized, in which the Unencumbered Assets owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(vii) a A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower, each Loan Party with respect Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of such Loan Party or other Persons authorized to execute and deliver the Loan Documents to which such Loan Party any of them is a party, party and in the case of the Borrower, authorized to execute and deliver on behalf officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing and requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of each Loan Party such Persons of (A) the by-laws of such Loan Partyall partnership, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (Bcomparable) all corporate, partnership, member or other necessary action taken by such Loan Party Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(ix) a Borrowing Base Certificate calculated as of The Fees then due and payable under Section 3.6, and any other Fees payable to the Cutoff Agent and the Lenders on or prior to the Effective Date;
(x) a A Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March as of December 31, 20192008;
(xi) a Disbursement Instruction Agreement effective Copies of the Unencumbered Asset Qualification Documents for each of the Properties included as an Unencumbered Asset as of the Agreement Effective Date;
(xii) There shall have occurred a contemporaneous closing under the Fee Letter;Revolving Credit Agreement, and all conditions precedent thereto shall have been satisfied; and
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request.
(b) there Each Departing Lender shall have received payment in full with respect to its “Commitment Percentage” (as defined in the Original Loan Agreement) of the Loans (as defined in the Original Loan Agreement) and the other obligations under the Original Loan Agreement.
(c) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Borrower, the other Obligors, and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower or any other Loan Party Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(diii) the The Borrower, the other Loan Parties Obligors and the other their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any Loan Party other Obligor is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which 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 Obligor to fulfill their respective obligations under the Loan Documents to which it is a party; and
(eiv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the Borrower and each other Loan Party shall have provided all information requested 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 ActLoan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (Wells Real Estate Investment Trust Ii Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Security Instrument shall be a valid lien upon the Property, prior and superior to all other liens and encumbrances thereon except those approved by Administrative Agent in writing;
(b) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts all Loan Documents, other documents, instruments, policies, and forms of evidence or other materials requested by Administrative Agent under the terms of this Agreement executed by each or any of the parties heretoother Loan Documents;
(ii) Revolving Notes executed by a new ALTA survey of the BorrowerProperty, payable certified to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with Administrative Agent, for the terms benefit of Section 2.12(a) Lenders and the Swingline Note executed title insurer, showing the boundaries of the Property by courses and distances, together with a corresponding metes and bounds description, the Borroweractual or proposed location of all improvements, encroachments and restrictions, the location and width of all easements, utility lines, rights-of-way and building set-back lines, and notes referencing book and page numbers for the instruments granting the same;
(iii) The Subsidiary Guaranty executed by a new Appraisal of the applicable parties theretoProperty (A) certifying an “as-stabilized” Appraised Value sufficient so that the ratio (expressed as a percentage) of the amount of the Loan to the “as-stabilized” Appraised Value of the Property does not exceed 60%, and (B) estimating an Adjusted NOI for calendar year 2013 sufficient to produce a DSCR (using such estimated Adjusted NOI for 2013) of not less than 1.25:1.00;
(iv) an a legal opinion of counsel to the Borrower and such the other Loan Parties as the Administrative Agent may 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%)Parties;
(v) the certificate or articles of incorporation or formationincorporation, 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 PartyPerson;
(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 Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party Person 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 Person authorized to execute and deliver the Loan Documents to which such Loan Party Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing“Fixed Rate Notices”, Notices of Swingline Borrowing and requests for Letters of Credit, Notices of Conversion and Notices of Continuationdisbursement from the FF&E Reserve Account;
(viii) copies certified by the Secretary secretary or Assistant Secretary assistant secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan PartyPerson, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) A certificate of Guarantor attaching a Borrowing Base Certificate calculated as complete and accurate depiction of the Cutoff Datedirect and indirect owners of Borrower and Operating Lessee;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2019;
(xi) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiixi) UCC, tax, judgment and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions indicating that there are no Liens of record with respect to the Fee Letterassets of each such Loan Party other than Permitted Liens;
(xiiixii) evidence that the Fees, if any, then due and payable under Section 3.52.4, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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;
(xvixiii) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 Article V (including, without limitation, both property and liability insurance for the Property) is in full force and effecteffect and stating that the coverage shall not be cancelable or materially changed without ten (10) days prior written notice to Administrative Agent of any cancellation for nonpayment or premiums, and not less than thirty (30) days prior written notice to Administrative Agent of any other cancellation or any modification (including a reduction in coverage), together with appropriate evidence that Administrative Agent, for its benefit and the benefit of Lenders is named as a lender’s loss payee and additional insured, as appropriate, on all insurance policies that Borrower or any Loan Party actually maintains with respect to the Property and improvements thereon; and
(xiv) the Security Documents;
(xv) a Management Agreement Subordination with respect to the Management Agreement;
(xvi) copies of all Material Contracts (to the extent not theretofore delivered) and, if requested by Administrative Agent, collateral assignments executed by Borrower or Operating Lessee (as applicable) in favor of Administrative Agent for its benefit and the benefit of Lenders, of the Material Contracts relating to the use, occupancy, operation, maintenance, enjoyment or ownership of the Property;
(xvii) Beneficial Ownership Certifications from an ALTA 2006 Form Loan Policy of Title Insurance for the Property in the aggregate amount of the original principal amount of the Loan in favor of Administrative Agent for its benefit and the benefit of Lenders, including endorsements with respect to such items of coverage as Administrative Agent may request (including, without limitation, aggregation endorsements for each policy) and which endorsements are available and customary in the jurisdiction where the Property is located, issued by First American Title Insurance Company, showing Borrower’s fee simple title to the Property, and Operating Lessee’s leasehold interest in the Property, and other Collateral described in the Security Instrument as vested in Borrower and such other Persons Operating Lessee, respectively, and insuring that the Lien granted by the Security Instrument is a valid Lien against the Property and the Collateral described therein, subject only to liens, restrictions, encumbrances, easements and reservations as the are acceptable to Administrative Agent and Lenders shall reasonably require(the “Title Policy”);
(xviii) A certificate receipt and approval of the current Capital Budget, Operating Budget and Marketing Plan;
(xix) receipt and approval of a reliance letter from The Planning & Zoning Resource Corporation with respect to its March 9, 2007 zoning report with respect to the Property, and a copy of such zoning report;
(xx) receipt and approval by Administrative Agent of a property conditions report with respect to the Property (the “Property Conditions Report”) and funds from Borrower, to be held in escrow with Administrative Agent, in an amount equal to one hundred twenty percent (120%) of the cost estimated in the Property Condition Report to complete any “immediate repairs” (or similar) as identified therein (to be disbursed to Borrower certifying that by Administrative Agent upon Administrative Agent’s confirmation of completion of such “immediate repairs”);
(xxi) receipt and approval by Administrative Agent of a phase I (and phase II if necessary) environmental assessment report with respect to the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence theretoProperty; and
(xixxxii) such other instruments, documents, agreements agreements, financing statements, certificates, opinions and instruments other Security Documents as the Administrative Agent, or any Lender through the Administrative Agent, 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 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 (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders Lender to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a initial Loan or the issuance of a Letter of Credit, is subject to the satisfaction following conditions precedent or waiver of the following conditions precedentthereof in accordance with Section 11.6:
(a) The Administrative Agent Lender shall have received each of the following, in form and substance satisfactory to the Administrative AgentLender:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes The Note executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms provisions of Section 2.12(a2.8.;
(iii) and the Swingline Note The Pledge Agreement duly executed by the Borrower;
(iiiiv) The Subsidiary Guaranty Control Agreement duly executed by the applicable parties theretoBorrower and the Custodian;
(ivv) A list prepared by the Custodian of all Investments, cash and Cash Equivalents of the Borrower, in each case, then held by the Custodian, such list to be as of a date no more than 2 days prior to the Effective Date;
(vi) A Form FR U-1 executed by Borrower with respect to any of the Collateral that constitutes “margin stock” within the meaning of Regulation T, U or X;
(vii) Copies of (A) the Prospectus, (B) the Custodian Agreement, dated March 4, 2009, between State Street and the Borrower, and (C) the Management Agreement, each of which is certified by an officer of the Borrower to be true, correct and complete;
(viii) An opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may requestBorrower, addressed to the Administrative Agent and Lender, addressing the Lenders matters set forth in a form and substance satisfactory to the Administrative Agent; provided, however, unless a Subsidiary Guarantor is organized under the laws Exhibit G;
(ix) The Certificate 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 Trust 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%);
(v) 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 PartyDelaware;
(vix) a A certificate of good standing (legal existence or certificate of similar meaning) meaning with respect to each Loan Party the Borrower issued as of a recent date by the Secretary of State of the state State of formation of each such Loan Party Delaware 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 the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viixi) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party the Borrower with respect to each of the its officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party it is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and requests for Letters of Credit, Notices of Conversion Continuation and Notices of ContinuationConversion;
(viiixii) copies Copies certified by the Secretary or Assistant Secretary of the Borrower (or other individual performing similar functions) of each Loan Party (i) the declaration of trust of the Borrower, (Aii) the by-laws of such Loan 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 Borrower and (Biii) all corporate, partnership, member or other necessary corporate action taken by such Loan Party the Borrower to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ixxiii) 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 A Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiixiv) the The Fee Letter;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.53.3., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xiv) 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 PropertyLender;
(xv) UCC, tax, judgment and lien search reports with respect A UCC-1 financing statement to be filed in the Borrower and each other Loan Party in all jurisdictions reasonably requested by office of the Administrative Agent indicating that there are no liens Secretary of record on such property other than Permitted Liens;State of the State of Delaware; and
(xvi) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.; and
(b) there In the reasonable judgment of the Lender:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders Lender 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 Lender prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the Borrower, the other Loan Parties and the other Subsidiaries The Borrower 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, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which any Loan Party the Borrower is a party or by which it or any of them or their respective its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of 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 to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the Borrower and each other Loan Party shall have provided all information requested 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 ActLoan Documents.
Appears in 1 contract
Sources: Credit Agreement (RMR Asia Pacific Real Estate Fund)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding any other than a Lender that has requested that it not to receive Notesa Revolving Note) and complying with the terms applicable provisions of Section 2.12(a) 2.11., and the Swingline Note Notes executed by the Borrower;
(iii) The Subsidiary Guaranty executed by the applicable parties theretoParent and each Subsidiary to which either of the conditions set forth in Section 7.12.(a) applies as of the Effective Date;
(iv) an opinion A Disbursement Instruction Agreement effective as of the Agreement Date;
(v) Customary opinions of counsel to the Borrower and such other Loan Parties as the Administrative Agent may requestParties, 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 Yorkand, 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%)Lenders;
(vvi) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the Secretary of State (or comparable official) of the state of formation of such Loan Party;
(vivii) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State (or comparable official) of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (or comparable official and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viiviii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing Borrowings, Notices of Continuation and requests for Letters of Credit, Notices of Conversion and Notices to request the issuance of ContinuationLetters of Credit;
(viiiix) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ax) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (By) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as of the Cutoff Date;
(x) a Compliance Certificate calculated on a pro forma basis for If requested by the Borrower’s fiscal quarter ending March 31Administrative Agent, 2019certificates of insurance evidencing the existence of all insurance required to be maintained by Loan Parties pursuant to the Agreement, and the Administrative Agent shall be reasonably satisfied with the type and extent of such coverage;
(xi) a Disbursement Instruction Agreement effective as of The Fees then due and payable under Section 3.6., and any other Fees payable to the Agreement Administrative Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(xii) A Compliance Certificate calculated as of March 31, 2019 (giving pro forma effect to the Fee Letterfinancing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xiii) evidence that the Fees, if any, then due The documentation and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to information requested by the Administrative Agent in order to comply with requirements of any Anti-Corruption Laws and any of the LendersAnti-Money Laundering Laws, including including, without limitation, the fees PATRIOT Act and expenses of counsel any applicable “know your customer” rules and regulations, at least five (5) Business Days prior to the Administrative Agent, have been paidClosing Date;
(xiv) with respect A Beneficial Ownership Certification in relation to each Borrowing Base Property identified on Schedule 4.1, each of Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the items referred Beneficial Ownership Regulation at least five (5) Business Days prior to in Section 6.3 required to be delivered in connection with any Borrowing Base Propertythe Closing Date;
(xv) UCC, tax, judgment and lien search reports Evidence that all “Indebtedness” (as defined in the Existing Term Loan Agreement) outstanding under the Existing Term Loan Agreement shall be repaid with respect the proceeds of the Revolving Loans to the Borrower and each other Loan Party in all jurisdictions reasonably requested be made by the Administrative Agent indicating Lenders hereunder on the Effective Date and evidence that there all other indebtedness, liabilities or obligations owing by the Loan Parties under the Existing Term Loan Agreement shall have been paid in full and all commitments thereunder are no liens of record on such property other than Permitted Liens;terminated; and
(xvi) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request.
(b) there 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 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 the other 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;
(cii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(diii) the BorrowerThe Parent, the other Loan Parties Borrower and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound; and
, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (eA) 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 Parent, the Borrower and each or any other Loan Party shall have provided all information requested by to fulfill its obligations under the Administrative Agent and each Lender in order Loan Documents to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Actwhich it is a party.
Appears in 1 contract
Sources: Credit Agreement (CubeSmart, L.P.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts 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 Notes) and complying with the terms applicable provisions of Section 2.12(a) 2.11., and the Swingline Note executed by the Borrower;
(iii) The Subsidiary Guaranty executed by the applicable parties theretoParent and each other Guarantor existing as of the Effective Date;
(iv) an A Transfer Authorizer Designation Form effective as of the Agreement Date;
(v) An opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may requestParties, 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 Yorkand, the Borrower shall not be required to deliver due executionLenders, authority and delivery opinions with respect to any Subsidiary Guarantor that is organized under addressing 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%)matters set forth in Exhibit J;
(vvi) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the Secretary of State (or comparable official) of the state of formation of such Loan Party;
(vivii) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State (or comparable official) of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (or comparable official and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viiviii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing Borrowings, Notices of Continuation and requests for Letters of Credit, Notices of Conversion and Notices to request the issuance of ContinuationLetters of Credit;
(viiiix) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ax) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (By) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as of the Cutoff Date;
(x) a Compliance Certificate calculated on a pro forma basis for If requested by the Borrower’s fiscal quarter ending March 31Administrative Agent, 2019certificates of insurance evidencing the existence of all insurance required to be maintained by Loan Parties pursuant to the Agreement, and the Administrative Agent shall be reasonably satisfied with the type and extent of such coverage;
(xi) a Disbursement Instruction Agreement effective as of The Fees then due and payable under Section 3.6., and any other Fees payable to the Agreement Administrative Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(xii) A Compliance Certificate calculated as of June 30, 2010 (giving pro forma effect to the Fee Letter;financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date); and
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request.; and
(b) there 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 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 the other 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;
(cii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the BorrowerThe Parent, the other Loan Parties Borrower and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which 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 Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) There shall not have occurred or exist any other material adverse change or material disruption in the Borrower and each other Loan Party shall have provided all information requested by loan syndication, financial, banking or capital markets that, in the Administrative Agent and each Lender in order reasonable judgment of the Joint Lead Arrangers, has impaired or could reasonably be expected to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitationimpair, the Patriot Actsyndication of the Loans, either (i) occurring on or after August 20, 2010, or (ii) occurring prior to August 20, 2010 but becoming known to the Joint Lead Arrangers after August 20, 2010.
Appears in 1 contract
Sources: Credit Agreement (U-Store-It Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding other than any Lender that has requested that it not receive Notesa Note) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower2.8.(a);
(iii) The Subsidiary the Guaranty executed by each of the applicable parties theretoParent and each Material Subsidiary (other than an Excluded Subsidiary or a Foreign Subsidiary) existing as of the Effective Date;
(iv) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may 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%);
(v) 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 (x) as of a recent date by the Secretary of State of the state of formation of such Loan PartyParty and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement Date;
(viv) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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;
(viivi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver on behalf of the Borrower Notices the Notice of Borrowing, Notices of Swingline Borrowing and requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viiivii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ixviii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Borrowing Base Certificate calculated Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as of may be required by the Cutoff DateAdministrative Agent;
(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 effective as of the Agreement Date;
(xii) the Fee Letter;
(xiiiix) evidence that the Fees, if any, Fees then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xivx) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) with respect to each Borrowing Base Property identified on Schedule 4.1., each of the items referred to in Section 6.3 4.1.(b)(i), (ii), (iv) and (vi) required to be delivered in connection with any Borrowing Base Property;
(xv) UCC, tax, judgment Unencumbered Property and lien search reports a pro forma operating budget for such Property 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 Lienscurrent fiscal year;
(xvixii) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 8.5. (including, without limitation, both property and liability insurance) is in full force and effect;
(xviixiii) Beneficial Ownership Certifications from each of the Borrower items required pursuant to Section 13.20.(b) with respect to the Closing Date Mortgage and such other Persons as evidence that the Administrative Agent and Lenders shall reasonably requirereal property subject to the Closing Date Mortgage is not in a special flood hazard area;
(xviiixiv) A certificate certified copies of enforceable amendments to the Borrower certifying that Revolving Facility and the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence theretoExisting Term Loan effected on the Effective Date; and
(xixxv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.
(b) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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 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 No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) the BorrowerThe Parent, the other Loan Parties Borrower and the other 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, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) the The Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a2.12
(a) and the Swingline Note executed by the Borrower;
(iii) The Subsidiary Guaranty executed by the applicable parties thereto;
(iv) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may 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, California, 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 five percent (45%);
(v) 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, authorized to execute and deliver 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;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) 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, 20192021;
(xi) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements and instruments as the 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 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 (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Sources: Credit Agreement (LGI Homes, Inc.)
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, this Agreement is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) to the extent requested by each Lender, Revolving Notes and Terms Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(ahas
(a) and the Swingline Note executed by the Borrower;
(iii) The Subsidiary the Guaranty executed by each of the applicable parties Guarantors initially to be a party thereto;
(iv) an opinion of (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory covering the matters reasonably required by Administrative Agent and (B) ▇▇▇▇▇▇▇ LLP, Maryland counsel to the Borrower and ▇▇▇▇▇▇ REIT, addressed to the Administrative Agent and the Lenders and covering the matters reasonably required by 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%);
(v) 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 issued within thirty (30) days of the date hereof and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such 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, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as of the Cutoff Date;
(x) a Compliance Certificate calculated on a pro forma basis (taking into account the Unencumbered Pool Properties as of the Agreement Date) for the Borrower’s fiscal quarter ending March 31June 30, 20192014;
(xix) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) intentionally omitted;
(xii) copies of all Material Contracts in existence on the Agreement Date not previously delivered to Administrative Agent;
(xiii) the Fee Letter;
(xiiixiv) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the LendersLenders for which an invoice has been provided at least three (3) Business Days prior to the date hereof, including including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 extent not previously delivered to Administrative Agent indicating that there are no liens of record on such property other than Permitted Liens;
(xvi) Agent, insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 (including, without limitation, both property and liability insurance) is in full force and effect;
(xviixvi) Beneficial Ownership Certifications from the Borrower UCC, tax, judgment and such lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions indicating that there are no liens of record other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower certifying that the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence theretothan Permitted Liens; and
(xixxvii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably requesta complete listing of all Subsidiaries which are not Guarantors.
(b) In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsJune 30, budgets2014, 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;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the Borrower, the other Loan Parties Borrower and the other 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(eiv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation, the USA Patriot Act.; and
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms applicable provisions of Section 2.12(a) 2.10., and the Swingline Note executed by the Borrower;
(iii) The Subsidiary Guaranty executed by each Guarantor existing as of the applicable parties theretoEffective Date;
(iv) an An opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, counsel to the Borrower and such other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent Agent, the Lenders and the Lenders Swingline Lender, substantially in a the form of Exhibit I-1, and substance satisfactory opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, LLP, special Maryland counsel to the Administrative Loan Parties, addressed to the 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 executionLenders and the Swingline Lender, authority and delivery opinions with respect to any Subsidiary Guarantor that is organized under substantially in the laws form 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%)Exhibit I-2;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, The declaration of trust of the Borrower certified as of a recent date by the Department of Assessments and Taxation of the State of Maryland;
(vi) A good standing certificate with respect to the Borrower issued as of a recent date by the Department of Assessments and Taxation of the State of Maryland and certificates of qualification to transact business or other comparable organizational instrument certificates issued by the Secretary of State (if anyand any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified would have, in each instance, a Material Adverse Effect;
(vii) A certificate of incumbency signed by the Secretary or Assistant Secretary of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Party Documents to which the Borrower is a party and the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viii) Copies, certified by the Secretary or Assistant Secretary of the Borrower, of all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(ix) The Governing Documents of each Guarantor certified as of a recent date by the Secretary of State of the state State of formation of such Loan PartyGuarantor;
(vix) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party Guarantor issued as of a recent date by the Secretary of State of the state State of formation of each such Loan Party Guarantor 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 Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(viixi) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party Guarantor with respect to each of the officers of such Loan Party Guarantor authorized to execute and deliver the Loan Documents to which such Loan Party Guarantor is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viiixii) copies Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan PartyGuarantor, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ixxiii) A copy of (x) each of the documents, instruments and agreements evidencing any of the Indebtedness described on Schedule 6.1.(g), (y) all Leases, all Ancillary Agreements, the Advisory Agreement, and each other Material Contract, in each case certified as true, correct and complete by the chief operating officer or chief financial officer of the Borrower, and (z) a Borrowing Base Certificate calculated as of Lease Abstract with respect to each Lease for the Cutoff DateUnencumbered Hotels;
(xxiv) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2019;
(xi) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, The Fees then due and payable under Section 3.53.6., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been 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 PropertyEffective Date;
(xv) UCCA Compliance Certificate calculated as of December 31, 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;2001; and
(xvi) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request.; and
(b) there In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(cii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the Borrower, the other Loan Parties The Borrower and the other 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, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which 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
(eiv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the Borrower and each other Loan Party shall have provided all information requested 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 ActLoan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes, Term Loan A Notes and Term Loan B Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) requesting a Revolving Note, Term Loan A Note and Term Loan B Note and complying with the terms applicable provisions of Section 2.12(a) 2.11., and the Swingline Note executed by the Borrower;
(iii) The the Guaranty executed by any Subsidiary which is required to be a Guarantor pursuant to Section 4.3., if any, as of the Effective Date, and the Springing Guaranty executed by the applicable parties theretoParent;
(iv) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may 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%);
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan PartyParty or a certification from the Secretary of the Parent that there have been no changes to such organizational instrument since the date such organizational instrument was previously provided to the Agent;
(viv) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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 the 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 Effecthas its principal place of business;
(viivi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing Borrowings, Notices of Continuation and requests for Letters of Credit, Notices of Conversion and Notices to request the issuance of ContinuationLetters of Credit;
(viiivii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity or a certification from the Secretary of the Parent that there have been no changes to such documents since the date such document was previously provided to the Agent and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, in form reasonably satisfactory to the Agent;
(ix) a Borrowing Base Certificate calculated as of the Cutoff Fees then due and payable under Section 3.6., and any other Fees payable to the Agent and the Lenders on or prior to the Effective Date to the extent such Fees have been invoiced prior to the Effective Date;
(x) a Compliance Certificate calculated on a as of the Effective Date (using unaudited pro forma basis for consolidated figures as of June 30, 2016 and giving pro forma effect to (x) the Borrower’s fiscal quarter ending March 31financing evidenced by this Agreement, 2019(y) the use of the proceeds of the Loans to be funded on the Agreement Date, and (z) the repayment of any Indebtedness on or prior to the Effective Date);
(xi) a Disbursement Instruction Agreement effective as of the Agreement Date[Reserved];
(xii) the Fee Letter[Reserved];
(xiii) evidence that if applicable, a disbursement statement setting forth in reasonable detail the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any application of the Lenders, including without limitation, initial Loans being funded on the fees and expenses of counsel to the Administrative Agent, have been paidEffective Date;
(xiv) with respect evidence that any lenders under the Existing Credit Agreement that are not continuing as Lenders hereunder have agreed to each Borrowing Base Property identified on Schedule 4.1accept repayment of all amounts due them under the Existing Credit Agreement and terminate their commitments thereunder, each of the items referred to in Section 6.3 required to be delivered in connection with any Borrowing Base Propertyas applicable;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower certifying that the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence thereto[Reserved]; and
(xixxvi) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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 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;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(diii) the BorrowerParent, the other Loan Parties Borrower and the its 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, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound; and
, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (eA) 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 and each or any other Loan Party shall have provided all information requested by to fulfill its obligations under the Administrative Loan Documents to which it is a party or the ability of the Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Actexercise its remedies hereunder.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable requesting Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a2.12.
(a) and the Swingline Note executed by the Borrower;
(iii) The Subsidiary Guaranty executed by the applicable parties theretointentionally omitted;
(iv) intentionally omitted;
(v) an opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ US LLP, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to covering the matters reasonably requested by 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%);
(vvi) 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;
(vivii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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;
(viiviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viiiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as of the Cutoff Date;
(x) a Compliance Certificate calculated on a pro forma basis for the BorrowerParent’s fiscal quarter ending March year ended December 31, 20192020;
(xi) intentionally omitted;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiixiii) intentionally omitted;
(xiv) intentionally omitted;
(xv) the Fee Letter;
(xiiixvi) evidence that the Fees, if any, then due and payable under Section 3.5., together with with, to the extent a reasonably detailed invoice thereof has been presented to the Borrower prior to the Effective Date, all other reasonable and documented out-of-pocket fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the reasonable and documented out-of-pocket fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xixxvii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.;
(b) since December 31, 2020, there shall not have occurred any material adverse condition or become known to material adverse change in or affecting, or the Administrative Agent occurrence of any circumstance 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 condition that has had or could reasonably be expected to result in a material adverse change in, or have a Material Adverse EffectEffect on, the business, assets, liabilities, condition (financial or otherwise), or operations of the Parent, the Borrower and their Subsidiaries;
(c) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or Borrower, any other Loan Party or the Parent to fulfill its obligations under the Loan Documents to which it is a party;
(d) the Parent, the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or 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
(ei) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act, and (ii) at least five (5) Business Days prior to the Agreement Date, the Borrower shall deliver, on behalf of itself and any Guarantor that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to itself and to such Guarantor, to each Lender that so requests such a Beneficial Ownership Certification.
Appears in 1 contract
Sources: Amendment No. 1 to Amended and Restated Credit Agreement (American Homes 4 Rent, L.P.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
: (a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
: (i) counterparts of this Agreement executed by each of the parties hereto;
; (ii) Revolving Notes, Tranche A Term Notes and Tranche B Term Notes (in each case, or replacements thereof) executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and Notes and, in each case, complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower;
2.12.(a); (iii) The Subsidiary the Guaranty executed by each Subsidiary Guarantor, the applicable parties thereto;
Parent and each other Required Guarantor; (iv) [reserved]; (v) an opinion letter of Cooley LLP and Venable LLP (with respect to Maryland law matters), counsel to the Borrower and such the other Loan Parties as the Administrative Agent may request, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory acceptable 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%);
(vvi) 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;
; (vivii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or 92 other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such 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;
; (viiviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver 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;
; (viiiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
; (ixx) [reserved]; (xi) evidence of property, business interruption and liability insurance covering each Eligible Property in form and substance reasonably acceptable to the Administrative Agent, and if requested by the Administrative Agent, copies of such insurance policies; (xii) [reserved]; (xiii) a Borrowing Base Certificate calculated as certificate signed by a Responsible Officer of the Cutoff Date;
Borrower certifying that the conditions specified in Sections 6.1.(b) through (xd) and Section 6.2. have been satisfied; (xiv) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31September 30, 2019;
2024; (xixv) a Disbursement Instruction Agreement effective as of the Agreement Date;
; (xiixvi) an amendment to the Fee Letter;
documentation relating to the term loan facility maturing in 2027 and agented by Wells Fargo Bank, National Association shall be effected and closed substantially simultaneously with the Effective Date; (xiiixvii) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
; (xviii) A certificate copies of all Specified Derivatives Contracts in existence on the Borrower certifying that the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence theretoAgreement Date; and
(xix) such other documents, agreements and instruments as the 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 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 (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Sources: Credit Agreement (NETSTREIT Corp.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, 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 executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a2.10.
(a) and the Swingline Note executed by the Borrower;
; (iii) The Subsidiary the Guaranty executed by each of the applicable parties Guarantors initially to be a party thereto;
; (iv) an opinion of Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Parent, the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders and in a form and substance satisfactory acceptable 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%);
(v) 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;of
(viib) a certificate In the good faith judgment 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, authorized to execute and deliver 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;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) 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 effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
: (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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.
(bi) 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;
; (cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.a
Appears in 1 contract
Sources: Credit Agreement (Saul Centers Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a) 2.11. and the Swingline Note executed by the Borrower;
(iii) The Subsidiary the Guaranty executed by the applicable parties theretoParent, and any other Person that would be required under Section 8.14. to become a party to the Guaranty as of the Effective Date;
(iv) an opinion of counsel to the Parent, the Borrower and such and, unless otherwise agreed by the Agent with respect to a given Guarantor, each of the other Loan Parties as the Administrative Agent may requestGuarantors that owns any Unencumbered Pool Property, addressed to the Administrative Agent and the Lenders and covering the matters set forth 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%)Exhibit J;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Parent, the Borrower and each Loan Party of the other Guarantors that owns any Unencumbered Pool Property certified as of a recent date by the Secretary of State of the state of formation of such Loan PartyPerson;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to the Parent, the Borrower and each Loan Party of the other Guarantors that owns any Unencumbered Pool Property issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party Person is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(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 Person authorized to execute and deliver the Loan Documents to which such Loan Party Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ax) the by-laws of such Loan PartyPerson, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and entity, (By) all corporate, partnership, member or other necessary action taken by such Loan Party Person to authorize the execution, delivery and performance of the Loan Documents to which it is a partyparty and (z) in the case of any Guarantor other than the Parent and any Guarantor that owns an Unencumbered Pool Property, the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of such Person;
(ix) a Borrowing Base Unencumbered Pool Certificate calculated as of the Cutoff Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s Parent's fiscal quarter ending March 31ended September 30, 20192001;
(xi) a Disbursement Instruction Agreement effective as pro forma calculations, together with detailed assumptions, establishing that the Parent, and when appropriate its consolidated Subsidiaries, will be in compliance with the covenants contained in Section 10.1. at the end of each of the Agreement Datenext eight fiscal quarters;
(xii) a copy of the Fee LetterExisting Credit Agreement, including all amendments thereto;
(xiii) evidence that the Fees, if any, then due Fleet Assignment Agreement executed and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to delivered by the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paidparties thereto;
(xiv) with respect the copies (or originals if available) of each outstanding Note (as defined in the Existing Credit Agreement) held by any Lender (as defined in the Existing Credit Agreement) that is not also a Lender under this Agreement (and in the case of originals, duly endorsed to each Borrowing Base Property identified on Schedule 4.1, each the order of the items referred to in Section 6.3 required to be delivered in connection with any Borrowing Base Property▇▇▇▇▇ Fargo);
(xv) UCCcopies of each of the New York Collateral Documents, taxincluding all amendments thereto, judgment showing all recording information thereon certified as true, correct and lien search reports with respect to complete by an authorized officer of 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 LiensParent;
(xvi) insurance certificatesassignments of each of the New York Collateral Documents executed by the Existing Agent, or other evidence, providing that such assignments relating to the insurance coverage required under Section 8.5 is applicable Mortgages to be substantially in full force and effectthe form of Exhibit L (each a "Mortgage Assignment");
(xvii) Beneficial Ownership Certifications from modifications to each of the Borrower and New York Collateral Documents executed by the applicable Loan Parties, such other Persons as modifications relating to the Administrative Agent and Lenders shall reasonably requireapplicable Mortgages to be substantially in the form of Exhibit M (each a "Mortgage Modification");
(xviii) A certificate all documents necessary in the sole discretion of the Borrower certifying that Agent to release any Liens created in connection with, or otherwise securing any obligations of any Loan Party owing in connection with, the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto Existing Credit Agreement, other than the New York Collateral Documents;
(xix) copies of each environmental assessments reports on the Properties subject to the New York Collateral Documents available to the Borrower, together with supporting evidence theretoreliance letters from the environmental engineering firms performing such assessments addressed to the Agent and the Lenders;
(xx) an Environmental Indemnity Agreement executed by the Borrower and the Parent with respect to each Property subject to a New York Collateral Document, such agreement to be substantially in the form of Exhibit N (each an "Environmental Indemnity Agreement"); and
(xixxxi) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.
(b) there In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Parent 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;
(cii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(diii) the Borrower, The Borrower and 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, conflict with or violation -34- of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
, 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 (e1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower and each or any other Loan Party shall have provided all information requested by to fulfill its obligations under the Administrative Agent and each Lender in order Loan Documents to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Actwhich it is a party.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower and the Florida Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms applicable provisions of Section 2.12(a) 2.10., and the Swingline Note executed by the Borrower;
(iii) The Subsidiary the Guaranty executed by Holdings, each Subsidiary that owns or leases a Collateral Property as of the applicable parties theretoEffective Date and each Material Subsidiary (other than any Exempt Subsidiary) as of the Effective Date;
(iv) an opinion or opinions of counsel to the Borrower and such other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders Lenders, addressing the matters set forth 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%)Exhibit H;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party;
(vi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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 the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing Borrowings, Notices of Continuation and requests for Letters of Credit, Notices of Conversion and Notices to request the issuance of ContinuationLetters of Credit;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a certificate from a Responsible Officer of the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects and (y) immediately after giving effect to the transactions contemplated by this Agreement, no Default or Event of Default shall exist;
(x) evidence of the payment of all Fees then due and payable under Section 3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(xi) a Borrowing Base Certificate calculated as of the 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 effective as of the Agreement Effective Date;
(xii) a Compliance Certificate calculated as of June 30, 2006 (giving pro forma effect to the Fee Letterfinancing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xiii) evidence that letters from the Fees, if any, then due administrative agent under each Existing Credit Agreement providing information regarding the payment in full of amounts outstanding under such Existing Credit Agreement and payable under Section 3.5, together with providing for the termination thereof and the release of all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and Liens securing any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paidobligations owing thereunder;
(xiv) all of the items required to be delivered under Sections 4.1. and 4.2. 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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request.; and
(b) there In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning Holdings, the Borrower Borrower, the other Loan Parties and its the other 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;
(cii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to to
(A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) Holdings, the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which 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 any Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
(c) When all of the conditions contained in the immediately preceding subsections (a) and (b) have been satisfied or waived in accordance with the terms hereof, the Agent shall promptly notify the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot ActLenders thereof.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The 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 of each Class executed by the Borrower, payable to each applicable Lender (but excluding any Lender of such Class that has requested that it not receive Notes) a Note of such Class, and complying with the terms of Section 2.12(a2.10.(a) and the Swingline Note executed by the Borrower;
(iii) The Subsidiary the Guaranty executed by the applicable parties Parent and each of the other Guarantors initially to be a party thereto;
(iv) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to covering such matters as 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%)Agent may reasonably request;
(v) 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, authorized to execute and deliver on behalf of the Borrower Notices of Revolving Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Conversion, Notices of ContinuationContinuation and any notice of Term Loan borrowing to be provided under any applicable Term Loan Supplement;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) 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 year ended December 31, 20192014;
(xix) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) evidence that all indebtedness, liabilities or obligations owing by the Loan Parties under the Existing Credit Agreement shall have been paid in full and any Liens securing such indebtedness, liabilities or other obligations have been released;
(xii) copies of all Material Contracts in existence on the Fee LetterAgreement Date;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xiv) certificates of insurance evidencing the insurance then in effect with respect to each Borrowing Base Property identified on Schedule 4.1, each of the items referred to Properties and otherwise in compliance with Section 6.3 required to be delivered in connection with any Borrowing Base Property8.5.;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements and instruments as the 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 business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effectmaterially adverse effect on the business, assets, liabilities, condition (financial or otherwise), results of operations or business prospects of the Parent, the Borrower and the Subsidiaries taken as a whole;
(c) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) the Parent, the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound;
(e) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents; and
(ef) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) if requested by any Lender pursuant to Section 2.11.(a) at least three (3) days prior to the date hereof, Revolving Credit Notes executed by the Borrower, payable to each applicable Lender (but excluding any Revolving Credit Lender that has requested that it not receive Notes) a Revolving Credit Note, and complying with the terms of of, Section 2.12(a2.11.(a) and the Swingline a Term Loan Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11.(a);
(iii) The Subsidiary the Guaranty executed by the applicable parties theretoParent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1.;
(iv) an opinion of ▇▇▇▇▇ Lovells LLP, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders and in a form and substance reasonably 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%);
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument document (if any) of each Loan Party certified as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of such Loan Party;
Party (vi) except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the Original Credit Agreement or the Original Term Loan Agreement has not been modified or amended and remains in full force and effect, a certificate of 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, authorized to execute and deliver 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;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) 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 effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 Subsidiary Guarantor so stating may be delivered in connection with any Borrowing Base Propertylieu of delivery of a current certified copy of such document);
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements and instruments as the 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 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 (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Sources: Credit Agreement (RLJ Lodging Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative AgentAgent and the Lenders:
(i) counterparts Counterparts of this Agreement and the Subsidiary Guaranty executed by each of the parties heretohereto and thereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to each applicable Lender (but excluding any other than a Lender that has requested that it not to receive Notesa Revolving Note or a Term Note, as applicable) and complying with the terms applicable provisions of Section 2.12(a) 2.11, and the Swingline Note executed by the Borrower;
(iii) The Subsidiary Guaranty executed by the applicable parties thereto[Reserved];
(iv) an opinion Opinions of counsel to NSA REIT and the Loan Parties (limited in scope to NSA REIT, the Borrower and such other Loan Parties as the Administrative Agent may requesteach Subsidiary Guarantor), 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%)Lenders;
(v) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of NSA REIT and each Loan Party certified as of a recent date by the Secretary of State (or comparable official) of the state of formation of NSA REIT and such Loan Party, or in lieu thereof a certification from NSA REIT and each Loan Party that its articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) have not changed from those previously delivered to the administrative agent under the Existing Credit Agreement;
(vi) a A certificate of good standing (or certificate of similar meaning) meaning with respect to NSA REIT, the Borrower, each Loan Party Subsidiary Guarantor, issued as of a recent date by the Secretary of State (or comparable official) of the state of formation of NSA REIT and each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (or comparable official and any state department of taxation, as applicable) of each state in which the failure of NSA REIT and such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have result in a Material Adverse Effect;
(vii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of NSA REIT and each Loan Party with respect to each of the officers of NSA REIT and such Loan Party authorized to execute and deliver the Loan Documents to which NSA REIT and such Loan Party is a party, and in the case of the Borrower, and the officers of NSA REIT, as general partner of the Borrower, then authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing Borrowings, Notices of Continuation and requests for Letters of Credit, Notices of Conversion and Notices to request the issuance of ContinuationLetters of Credit;
(viii) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of NSA REIT and each Loan Party of (Ax) the by-laws of NSA REIT and such Loan Party, if a corporation, the operating agreementagreement of NSA REIT and such Loan Party, if a limited liability company, the partnership agreementagreement of NSA REIT and such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity entity, or in lieu thereof a certification from NSA REIT and each Loan Party that its by-laws, the operating agreement, the partnership agreement or other comparable document have not changed from those previously delivered to the administrative agent under the Existing Credit Agreement and (By) all corporate, partnership, member or other necessary action taken by NSA REIT and such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) 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 effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, The Fees then due and payable under Section 3.53.6, together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent and any of the Lenders, including without limitationAgent, the fees Titled Agents and expenses the Lenders on or prior to the Effective Date (including the reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent);
(x) The results of a recent UCC lien search in the jurisdiction of organization of the Borrower, have been paidwhich search results shall reveal no Liens on any of the assets of the Borrower except for Liens permitted by Section 10.6 or discharged on or prior to the Effective Date pursuant to a payoff letter or other documentation reasonably satisfactory to the Administrative Agent;
(xi) [Reserved];
(xii) [Reserved];
(xiii) Evidence of amendments to the Borrower’s (or any other Loan Party’s) existing senior Unsecured Indebtedness in a form and substance satisfactory to the Administrative Agent, to reflect conforming changes contemplated by this Agreement;
(xiv) with respect A Compliance Certificate calculated as of June 30, 2019 (giving pro forma effect to each Borrowing Base Property identified on Schedule 4.1, each the financing contemplated by this Agreement and the use of the items referred to in Section 6.3 required proceeds of the Loans to be delivered in connection with any Borrowing Base Propertyfunded on the Effective Date);
(xv) UCCA certificate signed by a Responsible Officer, tax, judgment and lien search reports with respect to certifying that the Borrower and each other Loan Party conditions set forth in all jurisdictions reasonably requested by the Administrative Agent indicating that there are no liens of record on such property other than Permitted LiensSection 6.1(b) have been satisfied;
(xvi) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;such due diligence with respect to Eligible Unencumbered
(xvii) All documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including USA PATRIOT Act, and a properly completed and signed IRS Form W-8 or W-9 (October 2018 form), as applicable, and the Certification of Beneficial Ownership Certifications from the Borrower and for each such other Persons as the Administrative Agent and Lenders shall reasonably require;new Loan Party; and
(xviii) A certificate of the Borrower 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
(xix) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.the
(b) there shall not have occurred or become known to In the Administrative Agent or any determination 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 Lenders:
(i) Both immediately before and immediately after giving effect to the financing contemplated by this Agreement Date that has had or could reasonably and the use of the proceeds of the Loans to be expected to result in a Material Adverse Effect;
(c) no litigationfunded on the Effective Date, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect no Default or Event of Default exists, (B) restrain the representations and warranties made or enjoin, impose materially burdensome conditions on, or otherwise materially deemed made by NSA REIT and adversely affect, the ability of the Borrower or any other each Loan Party to fulfill its obligations under in the Loan Documents to which it is a partyparty are true and correct in all material respects (or in all respects to the extent that such representations and warranties are already subject to concepts of materiality) on and as of the Effective Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties are true and correct in such respects on and as of such earlier date);
(dii) There shall not have occurred any material adverse change since December 31, 2018, in the Borrowerbusiness, assets, operations or condition (financial or otherwise) of NSA REIT and any Loan Party, or in the facts and information regarding NSA REIT and any Loan Party provided by or on behalf of NSA REIT and any Loan Party to the Administrative Agent or any Lender;
(iii) After giving effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date, there shall not have occurred any event or condition that constitutes an “event of default” (howsoever defined) or that, with the giving of any notice, the passage of time, or both, would be an “event of default” under any of NSA REIT or the Loan Parties’ financial obligations (other Loan Parties than de minimis obligations) in existence on the Effective Date; and
(iv) NSA REIT and the other 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 material default under, material conflict with or material violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which NSA REIT or any Loan Party is a party or by which NSA REIT, any of them Loan Party or their respective properties is are bound; and
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Sources: Credit Agreement (National Storage Affiliates Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a2.12
(a) and the Swingline Note executed by the Borrower;
(iii) The Subsidiary the Guaranty executed by each of the applicable parties Guarantors initially to be a party thereto;
(iv) an opinion of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Parent, the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders and covering the matters set forth 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%)Exhibit L;
(v) 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 EffectParty;
(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, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Maximum Loan Availability Certificate calculated as of the Cutoff Effective Date;
(x) Appraisals of all Secured Pool Properties, together with all other due diligence reasonably requested by the Administrative Agent with respect to each Secured Pool Property, including, to the extent requested by the Administrative Agent, the items set forth on Schedule 6.1 hereto;
(xi) a Compliance Certificate calculated on a pro forma basis for the BorrowerParent’s fiscal quarter ending March 31September 30, 20192014;
(xixii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiixiii) evidence that all indebtedness, liabilities or obligations owing by the Fee LetterLoan Parties under the Existing Credit Agreement shall have been paid in full and all Liens securing, and Guarantees by any Loan Parties supporting, such indebtedness, liabilities or other obligations have been released;
(xiiixiv) copies of all Specified Derivatives Contracts in existence on the Agreement Date;
(xv) copies of the form of Tenant Lease to be used for each Property from the Effective Date until the Revolving Termination Date and each Tenant Lease entered into as of the Agreement Date with respect to such Property;
(xvi) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent Agent, the Arrangers and any of the LendersLenders pursuant to the Fee Letter or pursuant to the terms of this Agreement, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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;
(xvixvii) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 (including, without limitation, both property and liability insurance) is in full force and effect;
effect and stating that the coverage shall not be cancelable or materially changed without ten (xvii10) Beneficial Ownership Certifications from the Borrower and such other Persons as days prior written notice to the Administrative Agent of any cancellation for nonpayment of premiums, and Lenders shall reasonably require;
not less than thirty (xviii30) A certificate days prior written notice to the Administrative Agent of any other cancellation or any modification (including a reduction in coverage), together with appropriate evidence that the Administrative Agent, for its benefit and the benefit of the Borrower certifying Lenders, the Issuing Banks, and the Specified Derivatives Providers is named as a mortgagee lender’s loss payee and additional insured, as appropriate, on all insurance policies that the Loans are permitted under Borrower, any Senior Notes Indebtedness and/or Loan Party or any Senior Notes Indenture relating thereto together other Subsidiary actually maintains with supporting evidence theretorespect to any Property and improvements on such Property; and
(xixxviii) such other documents, agreements and instruments as the 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 business projections, budgets, pro forma data and forecasts concerning the Borrower Parent 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 (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower Parent or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) the Parent, the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and;
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(f) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Tier Reit Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding other than any Lender that has requested that it not receive Notesany Note) and complying with the terms of Section 2.12(a2.11.(a) and the Swingline Note executed by the Borrower;
(iii) The Subsidiary Guaranty executed by the applicable parties thereto;[Intentionally deleted.]
(iv) an opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, and an opinion of ▇▇▇▇ ▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to covering such matters as 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%)Agent may reasonably request;
(v) 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, authorized to execute and deliver on behalf of the Borrower Notices of Revolving Borrowing, Notices of Term Loan Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Notice of Term Loan Borrowing Base Certificate calculated as and Notice of Revolving Borrowing executed by the Cutoff DateBorrower;
(x) a Compliance Certificate calculated as of the Effective Date on a pro forma basis for the Borrower’s fiscal quarter ending March 31ended September 30, 20192014;
(xi) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xivxiii) 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 if requested by the Administrative Agent indicating that there are no liens of record on such property other than Permitted Liens;
(xvi) Agent, insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 7.5. (including, without limitation, both property and liability insurance) is in full force and effect;
(xviixiv) Beneficial Ownership Certifications from evidence that all indebtedness, liabilities or obligations owing by the Borrower and such other Persons as Loan Parties under the Administrative Agent and Lenders Existing Credit Agreements shall reasonably require;
(xviii) A certificate of have been paid in full concurrently with the Borrower certifying that the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence theretofirst Credit Event hereunder; and
(xixxv) such other documents, agreements documents and instruments as the 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 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 (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) the Borrower, the other Loan Parties Borrower and the other 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which could 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;
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(f) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes (or replacement Notes, as the case may be) executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower);
(iii) The Subsidiary Guaranty executed by the applicable parties thereto;
(iv) an opinion of outside counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to covering such matters as 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 Agent may request;
(iv) (A) the percentage copies 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%);
(v) 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) or (B) a certification by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party that such documents have not been amended or otherwise modified since the Revolving Credit Agreement Date;
(viv) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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 EffectPerson;
(viivi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver 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;
(viiivii) (A) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A1) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B2) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a partyparty or (B) with respect to the items in clause (A)(1) above, a certification by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party that such documents have not been amended or otherwise modified since the Revolving Credit Agreement Date;
(viii) a closing certificate substantially in form of Exhibit U, executed on behalf of the Borrower by an authorized officer of the Borrower;
(ix) 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 effective as of the Agreement Date;
(xiix) the Fee Lettera pro forma Compliance Certificate prepared as of September 30, 2023;
(xiiixi) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent Agent, the Joint Lead Arrangers and any of the Lenders, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xixxii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.;
(b) (i) the Merger shall be consummated substantially concurrently with the Refinancing on the Effective Date in accordance in all material respects with the Merger Agreement and (ii) all Existing Term Loans that are not repaid or assumed as part of the Refinancing shall have been repaid in full;
(c) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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 by or on behalf of the Borrower prior to the Agreement Date in connection with the transactions contemplated by this Agreement that has had or could reasonably be expected to result in a Material Adverse Effect;
(cd) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which is reasonably likely to be adversely determined, and, if adversely determined, could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(de) the Borrower, Borrower and 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and, 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 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;
(ef) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender at least 2 Business Days prior to the Agreement Date in order to comply with applicable “know your customer” and antiAnti-money laundering rules and regulationsMoney Laundering Laws, including without limitation, the Patriot Act; and
(g) the Borrower and each other Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case, at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a) 2.11. and the Swingline Note executed by the Borrower, payable to the Swingline Lender;
(iii) The Subsidiary the Guaranty executed by each of the applicable parties Guarantors initially to be a party thereto;
(iv) an opinion of White & Case LLP, counsel to the Borrower and such other Loan Parties as the Administrative Agent may requestGuarantors, and addressed to the Administrative Agent and the Lenders and covering the matters set forth 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%)Exhibit L;
(v) the certificate or articles of incorporation or formationincorporation, 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 PartyPerson;
(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 Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party Person is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(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 Person authorized to execute and deliver the Loan Documents to which such Loan Party Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary of each Loan Party (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan PartyPerson, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as of the Cutoff Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 20192004;
(xi) a Disbursement Instruction Agreement effective evidence of such insurance as of the Agreement Dateis required pursuant to Section 8.5.;
(xii) with respect to each Property identified on Schedule 4.1., each of the Fee Letteritems referred to in Section 6.3. required to be delivered in connection with any Collateral Property;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.53.6., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xiv) with respect to each Borrowing Base Property identified on Schedule 4.1, each Letters from the administrative agent under the Existing Credit Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the items referred to in Section 6.3 required to be delivered termination thereof and all Liens granted in connection with any Borrowing Base Property;therewith; and
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.; and
(b) there In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(cii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the Borrower, The Borrower and 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the Borrower and each other Loan Party shall have provided all information requested 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 ActLoan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes, Term Notes and Bid Rate Notes executed by the Borrower, payable to each applicable Lender (including any Designated Lender, if applicable but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a2.12.(a) and the Swingline Note executed by the Borrower;
(iii) The Subsidiary the Guaranty executed by each of the applicable parties Guarantors initially to be a party thereto, if any;
(iv) an opinion of in-house or outside counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to covering such matters as 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%)Agent may request;
(v) 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 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 EffectPerson;
(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, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base an Unencumbered Asset Certificate calculated as of the Cutoff Date;March 31, 2015,
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 20192015,
(xi) a Closing Certificate substantially in form of Exhibit T, executed on behalf of the Borrower by an authorized officer of the Borrower;
(xixii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiixiii) evidence that all indebtedness, liabilities or obligations owing by the Fee LetterLoan Parties under the Existing Credit Agreement shall have been paid in full;
(xiiixiv) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent Agent, the Lead Arrangers and any of the Lenders, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xixxv) such other documents, agreements and instruments as the 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 business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders by or on behalf of the Borrower prior to the Agreement Date in connection with the transactions contemplated by this Agreement that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which is reasonably likely to be adversely determined, and, if adversely determined, could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) the Borrower, Borrower and 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender at least 2 Business Days prior to the Agreement Date in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders Bank to effect make any Advance or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a to issue any Letter of Credit, Credit is subject to the satisfaction or waiver of condition precedent that the following conditions precedent:
(a) The Administrative Agent Bank shall have received each on or before the day of the first Advance or Letter of Credit all of the following, each dated (unless otherwise indicated) as of the date hereof, in form and substance satisfactory to the Administrative AgentBank:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower;
(iiia) The Subsidiary Guaranty Note, properly executed by the applicable parties thereto;
(iv) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may 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%);
(v) 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, authorized to execute and deliver 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;Borrower.
(viiib) copies certified The Security Agreement, properly executed on behalf of the Borrower.
(c) A financing statement or statements sufficient when filed to perfect the security interests granted under the Security Agreement to the extent such security interests are capable of being perfected by filing.
(d) Current searches of appropriate filing offices showing that (i) no state or federal tax liens have been filed and remain in effect against the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan PartyBorrower, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize no financing statements have been filed and remain in effect against the Borrower except financing statements perfecting only Liens permitted under Section 6.1.
(e) A certificate of the secretary of the Borrower (i) certifying that the execution, delivery and performance of the Loan Documents and other documents contemplated hereunder to which it such corporation is a party;
(ix) a Borrowing Base Certificate calculated as party have been duly approved by all necessary action of the Cutoff Date;
(x) a Compliance Certificate calculated on a pro forma basis for Board of Directors of the Borrower’s fiscal quarter ending March 31, 2019;
(xi) a Disbursement Instruction Agreement effective as and attaching true and correct copies of the Agreement Date;
applicable resolutions granting such approval, (xiiii) certifying that attached to such certificate are true and correct copies of the Fee Letter;
(xiii) evidence that articles of incorporation and bylaws of the Fees, if any, then due and payable under Section 3.5Borrower, together with all other feessuch copies, expenses and reimbursement amounts due and payable to (iii) certifying the Administrative Agent and any names of the Lendersofficers of the Borrower that are authorized to sign the Loan Documents and other documents contemplated hereunder, including without limitationrequests for Advances and Letters of Credit, together with the fees true signatures of such officers. The Bank may conclusively rely on such certificate until it shall receive a further certificate of the Secretary or Assistant Secretary of the Borrower canceling or amending the prior certificate and expenses submitting the signatures of counsel to the Administrative Agent, have been paid;officers named in such further certificate.
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviiif) A certificate of good standing of the Borrower certifying that the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence thereto; andBorrower, dated not more than ten days before such date.
(xixg) A signed copy of an opinion of counsel for the Borrower, addressed to the Bank as to matters referred to in Sections 4.1, 4.2, 4.3 and 4.7, and as to such other documents, agreements and instruments matters as the Administrative Agent, or any Lender through the Administrative Agent, Bank may reasonably request, with that opinion being acceptable to the Bank's counsel. In the case of Section 4.7, the opinion may be to the best knowledge of such counsel, and, in the case of Section 4.3, insofar as it relates to enforcement of remedies, it may be subject to applicable bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally from time to time, and to usual equity principles.
(bh) there shall not Such evidence as the Bank may reasonably require that the Indenture has been executed and delivered by all parties thereto and that the Senior Subordinated Notes have occurred or become known been issued, in each case in form and substance acceptable 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;Bank.
(ci) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding A Borrowing Base Certificate as of a date not more than 45 days before that date.
(j) The transaction fee required under paragraph 2.8(a). Such transaction fee shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(e) the Borrower and each other Loan Party shall have provided all information requested deemed fully earned 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 ActBank upon entering into this Agreement.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding other than any Lender that has requested that it not receive Notesa Note) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower2.8.(a);
(iii) The Subsidiary the Guaranty executed by each of the applicable parties theretoParent and each Material Subsidiary (other than an Excluded Subsidiary or a Foreign Subsidiary) existing as of the Effective Date;
(iv) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may 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%);
(v) 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 (x) as of a recent date by the Secretary of State of the state of formation of such Loan PartyParty and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement Date;
(viv) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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;
(viivi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver on behalf of the Borrower Notices the Notice of Borrowing, Notices of Swingline Borrowing and requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viiivii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ixviii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Borrowing Base Certificate calculated Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as of may be required by the Cutoff DateAdministrative Agent;
(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 effective as of the Agreement Date;
(xii) the Fee Letter;
(xiiiix) evidence that the Fees, if any, Fees then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xivx) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) with respect to each Borrowing Base Property identified on Schedule 4.1., each of the items referred to in Section 6.3 4.1.(b)(i), (ii), (iv) and (vi) required to be delivered in connection with any Borrowing Base Property;
(xv) UCC, tax, judgment Unencumbered Property and lien search reports a pro forma operating budget for such Property 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 Lienscurrent fiscal year;
(xvixii) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 8.5. (including, without limitation, both property and liability insurance) is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xixxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.
(b) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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 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 No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) the BorrowerThe Parent, the other Loan Parties Borrower and the other 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, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) the The Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders Lender to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, make any Loans is subject to the satisfaction or waiver condition precedent that the Borrower deliver to the Lender each of the following conditions precedentfollowing, each of which shall be satisfactory in form and substance to the Lender:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts a counterpart of this Agreement executed by each of the parties heretoBorrower;
(iib) the Revolving Notes Note and the Term Note executed by the Borrower, payable to each applicable the Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a2.8.;
(c) and the Swingline Note a Guaranty executed by each Loan Party other than the Borrower;
(iiid) The Subsidiary Guaranty a Pledge Agreement executed by each of the applicable parties theretoBorrower and each other Loan Party owning any equity interest in any other Loan Party, substantially in the form of Exhibit K;
(ive) the certificates issued in the name of the applicable Loan Party evidencing the stock and other securities subject to the Lien of the Pledge Agreement to which such Loan Party is a party;
(f) appropriate stock transfer powers endorsed in blank by each applicable Loan Party with respect to the certificates referred to in the immediately preceding subsection;
(g) a Security Agreement executed by each of the Borrower and the other Loan Parties substantially in the form of Exhibit L;
(h) Uniform Commercial Code financing statements naming each Loan Party as debtor, the Lender as secured party, and to be filed in each jurisdiction where the filing of such financing statements may be necessary or appropriate as determined by the Lender;
(i) favorable UCC, tax, judgment and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions and under all legal and appropriate trade names indicating that there are no prior Liens on any of the Collateral other than Permitted Liens or Liens to be terminated prior to the Effective Date;
(j) an opinion of Trou▇▇▇▇ ▇▇▇d▇▇▇ ▇▇▇, counsel to the Borrower and such other Loan Parties as Parties, in substantially the Administrative Agent may 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%)Exhibit M;
(vk) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state State of formation of such Loan Party;
(vil) a certificate Certificate of good standing (Good Standing or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state State of formation of each such 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 Effectqualified;
(viim) 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, authorized to execute and deliver 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;
; (viiin) copies certified by the Secretary or Assistant Secretary of each Loan Party (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) 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 effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements and instruments as the 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 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 (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, Borrower payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms applicable provisions of Section 2.12(a) 2.12, and the Swingline Note executed by the BorrowerBorrower payable to the Swingline Lender (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) The Subsidiary Guaranty executed by each Guarantor existing as of the applicable parties theretoEffective Date;
(iv) an The Pledge Agreement executed by the Borrower;
(v) A favorable opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may requestObligors, addressed to the Administrative Agent Agent, the Lenders and the Lenders in a form and substance satisfactory to the Administrative Agent; providedSwingline Lender, 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 addressing 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%)matters as Agent may reasonably require;
(vvi) The Governing Documents of the certificate Borrower, each Guarantor and each general partner, managing member (or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if anyPerson performing similar functions) of each Loan Party such Persons certified as of a recent date by the Secretary of State of the state State of formation of such Loan Partythe applicable Person;
(vivii) a certificate of A good standing (or certificate of similar meaning) with respect to the Borrower, each Loan Party Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Loan Party Person is organized, in which the Borrowing Base Properties owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(viiviii) a A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower, each Loan Party with respect Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of such Loan Party or other Persons authorized to execute and deliver the Loan Documents to which such Loan Party any of them is a party, party and in the case of the Borrower, authorized to execute and deliver on behalf officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing and requests for Letters of CreditContinuation, Notices of Conversion and Notices of ContinuationSwingline Borrowings and to request the issuance of Letters of Credit;
(viiiix) copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of each Loan Party such Persons of (A) the by-laws of such Loan Partyall partnership, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (Bcomparable) all corporate, partnership, member or other necessary action taken by such Loan Party Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(ixx) a The Fees then due and payable under Section 3.6, and any other Fees payable to the Agent and the Lenders on or prior to the Effective Date;
(xi) A pro forma Compliance Certificate calculated as of November [ ], 2010;
(xii) 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 31November [ ], 2019;
(xi) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xii) the Fee Letter2010 showing compliance with Section 2.13;
(xiii) evidence that Each of the Fees, if any, then due and payable under conditions set forth in Section 3.5, together 7.17 shall have been satisfied with all other fees, expenses and reimbursement amounts due and payable respect to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;Collateral; and
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request.
(b) there In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Borrower, the other Obligors, and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Effective Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower or any other Loan Party Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(diii) the The Borrower, the other Loan Parties Obligors and the other their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any Loan Party other Obligor is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which 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 Obligor to fulfill their respective obligations under the Loan Documents to which it is a party; and
(eiv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the Borrower and each other Loan Party shall have provided all information requested 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 ActLoan Documents.
Appears in 1 contract
Sources: Credit Agreement (Wells Core Office Income Reit Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding other than any Lender that has requested that it not receive Notesa Note) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower2.8.(a);
(iii) The Subsidiary the Guaranty executed by each of the applicable parties Guarantors initially to be a party thereto;
(iv) [intentionally deleted]
(v) [intentionally deleted]
(vi) an opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, and opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders and covering the matters set forth 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%)Exhibit H;
(vvii) a certificate signed by the Secretary or Assistant Secretary (or other individual performing similar functions) certifying that none of the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each any Loan Party previously delivered to the Administrative Agent and the Lenders on March 12, 2012, under the Existing Credit Agreement has been amended, restated, supplemented or otherwise modified since such date and that each is in full force and effect as of the Agreement Date, or if any of the foregoing has been amended, restated, supplemented or otherwise modified, copies of the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of such Person, certified as of a recent date by the Secretary of State of the state State of formation Formation of such Loan PartyPerson;
(viviii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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;
(viiix) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver on behalf of the Borrower Notices the Notice of Borrowing, Notices of Swingline Borrowing and requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viiix) a certificate signed by the Secretary or Assistant Secretary (or other individual performing similar functions) certifying (A) that none of bylaws or operating agreements, as applicable, of any Loan Party previously delivered to the Administrative Agent and the Lenders on March 12, 2012, under the Existing Credit Agreement has been amended, restated, supplemented or otherwise modified since such date and that each is in full force and effect as of the Agreement Date, or if any of the foregoing has been amended, restated supplemented or otherwise modified, copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan PartyPerson, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity entity, and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ixxi) the Notice of Borrowing from the Borrower for the Loans indicating how the proceeds thereof are to be made available to the Borrower, and if any of the Loans initially are to be LIBOR Loans, the Interest Period therefor;
(xii) a Borrowing Base Compliance Certificate calculated as of the Cutoff Date;
(x) a Compliance Certificate calculated on a pro forma basis Effective Date for the Borrower’s fiscal quarter ending ended March 31, 20192012;
(xixiii) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(xii) the Fee Letter;
(xiiixiv) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 7.5. (including, without limitation, both property and liability insurance) is in full force and effect;
(xviixvi) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;[intentionally deleted]
(xviii) A certificate of the Borrower 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
(xixxvii) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.; and
(b) In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the Borrower, the other Loan Parties Borrower and the other 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which could 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;
(eiv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender may request in order to comply with applicable “know your customer” the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)); and
(v) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and anti-money laundering rules and regulations, including without limitation, adversely affect the Patriot Acttransactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Bank 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, is are subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notesa Revolving Note) and complying with the terms of Section 2.12(a2.11.
(a) and the Swingline Note executed by the Borrower;
(iii) The Subsidiary the Guaranty executed by each of the applicable parties Guarantors initially to be a party thereto;
(iv) an opinion of counsel to the Borrower and such the other Loan Parties as the Administrative Agent may request, addressed to the Administrative Agent Agent, the Issuing Bank and the Lenders in a form and substance satisfactory to covering 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%)matters set forth on Exhibit J;
(v) 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 Revolving Loan Borrowing, Notices of Swingline Borrowing and requests for Letters of CreditBorrowing, Notices of Conversion and Notices of ContinuationContinuation and to request the issuance of Letters of Credit;
(vi) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Borrower and each other Loan Party, certified as of a recent date by the Secretary of State of the State of formation;
(vii) a Certificate of Good Standing or certificate of similar meaning with respect to 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 of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of (A) each state in which such Person is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect and (B) with respect to each Loan Party that owns or leases an Unencumbered Property, of each state in which any such Unencumbered Property is located, if different from the state of formation of such Person;
(viii) 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 Loan PartyPerson, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity entity;
(ix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and (B) 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;
(ix) 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 Transfer Authorizer Designation executed by the Borrower effective as of the Agreement Date;
(xi) a Compliance Certificate calculated as of the Parent’s fiscal quarter ended December 31, 2012 giving pro forma effect to the making of the Loans, the application of the proceeds thereof and the termination of the Existing Credit Agreement;
(xii) a payoff letter from the Fee Letteradministrative agent under the Existing Credit Agreement providing appropriate information regarding the payment in full of all Indebtedness under the Existing Credit Agreement, providing that all Liens securing such Indebtedness shall be released upon payment of such Indebtedness and the termination of the Existing Credit Agreement;
(xiii) evidence satisfactory to the Administrative Agent that the Fees, if any, Fees then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts then due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative AgentLenders for which payment has been demanded, have been paid;; and
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.;
(b) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Parent 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 have a Material Adverse Effect;
(c) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (Ai) result in have a Material Adverse Effect or (Bii) 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;
(d) the Borrower, The Borrower and 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, conflict with under or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (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
(e) the The Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Sources: Credit Agreement (Pennsylvania Real Estate Investment Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Term Loan Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms applicable provisions of Section 2.12(a) and the Swingline Note executed by the Borrower2.10.;
(iii) The Subsidiary the Guaranty executed by the applicable parties theretoParent and each Subsidiary that owns or leases an Initial Unencumbered Pool Property, if any, as of the Effective Date;
(iv) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may 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%);
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party;
(viv) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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 the 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 Effecthas its principal place of business;
(viivi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing and requests for Letters of Credit, Notices of Conversion Continuation and Notices of ContinuationConversion;
(viiivii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and or a certificate of no change, certified by such Secretary or Assistant Secretary, as to such by-laws, operating agreements, partnership agreements or other comparable documents of each Loan Party delivered in connection with the Revolving Credit Agreement;
(Bviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) an opinion of counsel to the Loan Parties, addressed to the Agent, and the Lenders in form reasonably satisfactory to the Agent;
(x) the Fees then due and payable under Section 3.6., and any other Fees payable to the Agent and the Lenders on or prior to the Effective Date;
(xi) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xii) a Borrowing Base Certificate calculated as of the Cutoff Effective 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 effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paidReserved;
(xiv) with respect to each Borrowing Base Property identified on Schedule 4.1, each a disbursement statement setting forth in reasonable detail the application of the items referred to in Section 6.3 required to be delivered in connection with any Borrowing Base PropertyLoans being funded on the Effective Date;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower certifying that the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence theretoReserved; and
(xixxvi) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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 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;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(diii) the BorrowerParent, the other Loan Parties Borrower and the its 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, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound; and
, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (eA) 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 and each or any other Loan Party shall have provided all information requested by to fulfill its obligations under the Administrative Loan Documents to which it is a party or the ability of the Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Actexercise its remedies hereunder.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notesor Designated Lender, if applicable) and complying with the terms applicable provisions of Section 2.12(a) 2.11., and the Swingline Note executed by the Borrower;
(iii) The Subsidiary Guaranty executed by the applicable parties theretoParent and each other Guarantor existing as of the Effective Date;
(iv) an An opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent Agent, the Lenders and the Lenders Swingline Lender, addressing the matters set forth 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%)Exhibit M;
(v) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party;
(vi) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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 the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each 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, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation and requests for Letters of Credit, Notices of Conversion and Notices to request the issuance of ContinuationLetters of Credit;
(viii) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as of The Fees then due and payable under Section 3.6., and any other Fees payable to the Cutoff Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(x) a A Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending as of March 31, 20192007 (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);
(xi) The Pledge Agreement executed by the Pledgor;
(xii) All certificates representing any shares of Equity Interests pledged pursuant to the Pledge Agreement, together with an undated stock power for each such certificate executed in blank by a Disbursement Instruction duly authorized officer of the Pledgor;
(xiii) Each document (including, without limitation, any UCC financing statement) required by the Pledge Agreement effective or under Applicable Law or reasonably deemed necessary or appropriate by the Agent to be filed, registered or recorded in order to create in favor of the Agent, for the benefit of the Lenders, a perfected first-priority Lien on the Collateral (as defined in the Pledge Agreement), shall have been filed, registered or recorded or shall have been delivered to the Agent in proper form for filing, registration or recordation;
(xiv) Results of a recent lien search in each of the jurisdictions in which UCC financing statements or other filings or recordations should be made to evidence or perfect security interests in Collateral (as defined in the Pledge Agreement), and such search shall reveal no Liens of record with respect to any of such Collateral other than Permitted Liens or Liens to be terminated prior to the Effective Date;
(xv) With respect to each of the New York Mortgages listed on Schedule 1.1.(B), each of the items required under Section 12.19.(d) if not previously delivered to the Agent;
(xvi) Certified copies of (a) the “Basic Company Agreements”, as defined in the Shareholder’s Agreement (the “1221 Shareholder’s Agreement”) dated as of December 29, 2003 among Rock-Green, Inc., Rockefeller Group International, Inc. and Green Hill Acquisition LLC, (b) the statement referred to in Section 2.3(g) of the 1221 Shareholder’s Agreement, executed by Rockefeller Group International, Inc. and dated as of the Agreement Date and (c) the estoppel certificate referred to in Section 7.8 of the 1221 Shareholder’s Agreement, executed by Rockefeller Group International, Inc. and dated as of the Agreement Date;
(xiixvii) the Fee Letter;
(xiii) evidence that the Fees, if any, then due A payoff letter in form and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable substance reasonably satisfactory to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xiv) 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 Indebtedness owing by Green Hill Acquisition LLC (“Green Hill”) pursuant to that certain Amended and each other Restated Loan Agreement dated as of May 6, 2005 by and among ▇▇▇▇▇ Fargo Bank, National Association, KeyBank, National Association, The Bank of New York, Union Bank of California, N.A., ING Real Estate Finance (USA) LLC and Green Hill, together with such releases or authorizations as the Agent may reasonably request to evidence the termination or release of any Liens granted by any 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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably requirepursuant thereto;
(xviii) A certificate of the Borrower 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
(xix) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request.; and
(b) there In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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 Subsidiaries the other Loan Parties delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower, Borrower and the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Parent, the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which 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 Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the Borrower and each other Loan Party shall have provided all information requested 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 ActLoan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower;
(iii) The Subsidiary Guaranty executed by the applicable parties thereto;
(iv) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may 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, California, 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 five percent (45%);
(v) 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, authorized to execute and deliver 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;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) 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, 20192021;
(xi) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements and instruments as the 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 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 (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Sources: Second Amendment to Fifth Amended and Restated Credit Agreement (LGI Homes, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Notes executed by the Borrower, payable to each applicable Lender (but excluding any Revolving Credit Lender that has requested that it not receive Notes) a Revolving Credit Note, and complying with the terms of of, Section 2.12(a2.11(a) and the Swingline a Term Loan Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) The Subsidiary the Guaranty executed by the applicable parties theretoParent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1;
(iv) an opinion of ▇▇▇▇▇ Lovells LLP, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders and in a form and substance reasonably 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%);
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument document (if any) of each Loan Party certified as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of such Loan PartyParty (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the Existing Credit Agreement has not been modified or amended and remains in full force and effect, a certificate of the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be delivered in lieu of delivery of a current certified copy of such document);
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party of the Borrower and the Parent Guarantor issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Loan Party Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such a 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, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity (except that, if any such document delivered to Administrative Agent pursuant to the Existing Credit Agreement has not been modified or amended and remains in full force and effect, a certificate so stating may be delivered in lieu of delivery of another copy of such document) and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as evidence of the Cutoff Dateinsurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31as of September 30, 2019;
(xixii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees (including, to the extent then due, the “Fees” (under and as defined in the Existing Credit Agreement) and interest under the Existing Credit Agreement accrued through the Effective Date), if any, then due and payable under Section 3.5, together with with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including including, without limitation, the reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(xivi) with respect to each Borrowing Base Property identified on Schedule 4.1, each of all documentation and other information regarding the items referred to in Section 6.3 required to be delivered Borrower requested in connection with any Borrowing Base Property;applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the Borrower, Borrower and 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, conflict with or violation of (A) any Applicable Law or (B) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(eiv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Sources: Credit Agreement (RLJ Lodging Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent::
(a) The 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 (or replacement Notes, as the case may be) of each Class executed by the Borrower, payable to each applicable Lender (but excluding any Lender of such Class that has requested that it not receive Notesa Note of such
(a) and complying with the terms of Section 2.12(a) and the a replacement Swingline Note executed by the Borrower;;
(iii) The Subsidiary the Guaranty executed by the applicable parties Parent and each of the other Guarantors initially to be a party thereto;;
(iv) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to covering such matters as 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%)Agent may reasonably request;
(v) 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, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;;
(ix) 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 previous four calendar quarters ending March 31on June 30, 2019;2018;
(xix) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) [Reserved];
(xii) copies of all Material Contracts in existence on the Fee Letter;Agreement Date and either entered into or amended in any material respect after April 2, 2015;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;;
(xiv) with respect to each Borrowing Base Property identified on Schedule 4.1, each certificates of insurance evidencing the items referred to insurance then in Section 6.3 required to be delivered in connection with any Borrowing Base Property;
(xv) UCC, tax, judgment and lien search reports effect with respect to the Borrower Properties and each other Loan Party otherwise in all jurisdictions reasonably requested by the Administrative Agent indicating that there are no liens of record on such property other than Permitted Liens;compliance with Section 8.5.;
(xvi) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xixxv) such other documents, agreements and instruments as the 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 business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;materially adverse effect on the business, assets, liabilities, condition (financial or otherwise), results of operations or business prospects of the Parent, the Borrower and the Subsidiaries taken as a whole;
(c) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;;
(d) the Parent, the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(e) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents;
(f) the Borrower and each other Loan Party shall have provided all information reasonably requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and antiAnti-money laundering rules and regulationsMoney Laundering Laws, including without limitation, the Patriot Act.; and
(g) each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall, collectively, have delivered to the Administrative Agent, and any Lender requesting the same, one Beneficial Ownership Certification in relation to each such Loan Party or such Subsidiary, in each case, at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, this Agreement is subject to the satisfaction or waiver of the following conditions precedent:precedent (the date of the satisfaction or waiver of the conditions set forth in this Section 6.1, the “Effective Date”):
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) to the extent requested by each Lender, Revolving Notes and Terms Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not to receive Notes) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower;
(iii) The Subsidiary the Guaranty executed by the applicable parties thereto▇▇▇▇▇▇ REIT;
(iv) an opinion of (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory covering the matters reasonably required by Administrative Agent and (B) ▇▇▇▇▇▇▇ LLP, Maryland counsel to the Borrower and ▇▇▇▇▇▇ REIT, addressed to the Administrative Agent and the Lenders and covering the matters reasonably required by 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%);
(v) 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 issued within thirty (30) days of the date hereof and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such 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, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as of the Cutoff Date;
(x) a Compliance Certificate calculated on a pro forma basis (taking into account the Unencumbered Pool Properties as of the Agreement Date) for the Borrower’s fiscal quarter ending March December 31, 20192014;
(xix) a Disbursement Instruction Agreement effective as of the Agreement Effective Date;
(xi) the substantially concurrent (pursuant to an escrow arrangement reasonably satisfactory to Administrative Agent) closing of “The Redwood Portfolio” acquisition by Borrower and ▇▇▇▇▇▇ REIT pursuant to the Asset Purchase Agreement among the sellers named therein, the ▇▇▇▇▇▇ REIT, and Borrower delivered to Administrative Agent and certain other initial lender parties on December 6, 2014, at 4:45 pm Pacific Time (the “Acquisition”);
(xii) copies of all Material Contracts in existence on the Agreement Date not previously delivered to Administrative Agent;
(xiii) the Fee Letter;
(xiiixiv) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the LendersLenders for which an invoice has been provided at least three (3) Business Days prior to the date hereof, including including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 extent not previously delivered to Administrative Agent indicating that there are no liens of record on such property other than Permitted Liens;
(xvi) Agent, insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 (including, without limitation, both property and liability insurance) is in full force and effect;
(xvi) UCC, tax, judgment and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions indicating that there are no liens of record other than Permitted Liens;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;a complete listing of all Subsidiaries which are not Guarantors; and
(xviii) A certificate of evidence that all accrued and unpaid interest and fees owing by the Borrower certifying that Loan Parties under the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence thereto; and
Existing Credit Facilities have been paid, in full, for which an invoice has been provided at least three (xix3) such other documents, agreements and instruments as Business Days prior to the Administrative Agent, or any Lender through the Administrative Agent, may reasonably requestdate hereof.
(b) In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsDecember 31, budgets2014, 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;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the Borrower, the other Loan Parties Borrower and the other 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(eiv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation, the USA Patriot Act.; and
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(iiA) Revolving Notes executed by the Borrower, payable to each applicable Lender Lender, (but excluding any Lender that has requested that it not receive NotesB) Bid Rate Notes executed by Borrower, each in the full amount of the potential Bid Rate Borrowing and one payable to each Lender, and (C) a Swingline Note executed by Borrower and payable to the Swingline Lender, each complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower2.11;
(iii) The Subsidiary the Guaranty executed by each of the applicable parties Guarantors initially to be a party thereto;
(iv) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may shall request, addressed to the Administrative Agent and the Lenders substantially in a the 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%)set forth in Exhibit H;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party (A) the Borrower, certified as of a recent date by the Secretary of State of the state State of formation organization of such Person, and (B), each of the other Loan PartyParties, certified as of a recent date (and with reference to documents filed and certified by the applicable state Secretary of State) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Person;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to the Borrower and each of the other Loan Party Parties issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and Person and, within thirty (30) days following the Effective Date, 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 Person owns a Material Adverse EffectPool Asset;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each of the other Loan Party Parties with respect to each of the officers of such Loan Party Person authorized to execute and deliver the Loan Documents to which such Loan Party Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing Conversion, Notices of Continuation and requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party the Borrower of (Ax) the by-laws of such Loan 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 Borrower and (By) all corporate, partnership, member corporate or other necessary action taken by such Loan Party Borrower to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Pool Certificate calculated as of for the Cutoff DateBorrower’s fiscal quarter ending September 30, 2005;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31September 30, 20192005;
(xi) a Disbursement Instruction Agreement effective as of evidence satisfactory to the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence Administrative Agent that the Fees, if any, Fees then due and payable under Section 3.53.6, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xivxii) with respect to a fully executed and satisfactory Solvency Certificate for each Borrowing Base Property identified on Schedule 4.1, each Guarantor and provided by the Chief Financial Officer of Borrower in the items referred to in Section 6.3 required to be delivered in connection with any Borrowing Base Propertyform attached as Exhibit L hereto;
(xvxiii) UCC, tax, judgment a certificate from Borrower (A) certifying that all Persons required by Section 8.14 to become Guarantors hereunder have executed a Guaranty and lien search reports with respect become parties to the Borrower Indemnity and each other Loan Party Contribution Agreement, and (B) listing the Subsidiaries and Unconsolidated Affiliates which are not becoming Guarantors hereunder by operation of the proviso 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 certificatesSection 8.14(a), or other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the which listing shall include a certification to Administrative Agent and Lenders shall reasonably require;
(xviiialong with a statement as to the reasons why) A certificate of the Borrower certifying that the Loans such Persons are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence theretonot required to become a Guarantors; and
(xixxiv) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.
(b) there In the good faith judgment of the Administrative Agent:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(cii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, 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
(diii) the Borrower, The Borrower and the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or will make contemporaneously with the making of the first Loan or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
, 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 (e1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower and each or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party.
(c) Borrowers shall have provided paid to Administrative Agent, for the benefit of Lenders, all information requested interest and other fees due under the Prior Credit Agreement, prorated to the effective date of this Agreement and, subject to the provisions of Section 2.1(a) with respect to the repayment of outstanding Bid Rate Loans, any repayment of Loan principal required to remain in compliance with the reduced Total Commitment Amount effectuated by the Administrative Agent and each Lender Agreement.
(d) Lenders, as applicable, shall have completed whatever balancing transfers amongst themselves as are necessary in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, result in each Lender having the Patriot Actoutstanding balances referenced on Schedule 1.1(A) attached hereto.
Appears in 1 contract
Sources: Credit Agreement (Equity One Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) Notes prior to the Effective Date, and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower2.12.(a);
(iii) The Subsidiary Guaranty executed by the applicable parties thereto;
(iv) an opinion of counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to covering such matters as the Administrative AgentAgent may reasonably request; 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%);Execution Version
(viv) 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;
(viv) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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;
(viivi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver 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;
(viiivii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) 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 effective as of the Agreement Date;
(xii) the Fee Letter;
(xiiiviii) evidence that the Fees, if any, then due and payable under Section 3.5., together with with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the reasonable and documented out‑of‑pocket fees and expenses of counsel to the Administrative Agent, have been 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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xixix) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2016;
(x) the financial statements described in Section 6.1.(j) hereof; and
(xi) such other documents, agreements and instruments as the 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 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 in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially Execution Version 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;
(d) 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Sources: Term Loan Agreement (Washington Real Estate Investment Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a2.10.(a) and the Swingline Note executed by the Borrower;
(iii) The Subsidiary the Guaranty executed by each of the applicable parties Guarantors initially to be a party thereto;
(iv) an opinion a payoff letter executed by WP ▇▇▇▇▇ evidencing that the WP ▇▇▇▇▇ Credit Facility has been repaid in full and terminated;
(v) opinions of ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower and such the other Loan Parties as Parties, and ▇▇▇▇▇▇▇, LLP, special Maryland counsel to the Administrative Agent may requestREIT Guarantor, 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 covering all matters customary for financings 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%)this type;
(vvi) 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 certified, with respect to the Borrower, as of a recent date by the Secretary of State of the state of formation of such Loan PartyParty and with respect to the REIT Guarantor, by an authorized officer of the REIT Guarantor as being true and complete and in full force and effect as of the Effective Date;
(vivii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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;
(viiviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viiiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) 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 effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xixxi) such other documents, agreements and instruments as the 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 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 (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) 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, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance or continuation of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The 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 executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has if requested that it not receive Notesby such Lender) and complying with the terms applicable provisions of Section 2.12(a) and the Swingline Note executed by the Borrower2.12.;
(iii) The Subsidiary Guaranty executed by the applicable parties thereto[Reserved];
(iv) an opinion Opinions of counsel to the Borrower and such other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders and the Swingline Lender, addressing the matters set forth 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%)Exhibit F;
(v) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party;
(vi) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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 the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each 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, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation, Notices of Conversion, Notices of Swingline Borrowing and requests for to request the issuance of Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) 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 effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence Evidence that the Fees, if any, Fees then due and payable under Section 3.53.6., together with all and any other feesFees, expenses and reimbursement reimbursable amounts due and payable to the Administrative Agent and any of the Lenders, including without limitationAgent, the fees Titled Agents and expenses of counsel the Lenders on or prior to the Administrative AgentEffective Date, for which invoices have been presented to the Borrower at least 2 Business Days prior to the Effective Date, have been paid;
(xivx) with respect A Compliance Certificate to each Borrowing Base Property identified be calculated based on Schedule 4.1the financial statements for the period ending as of March 31, each 2022, after giving pro forma effect to the financing contemplated by this Agreement and the use of the items referred to in Section 6.3 required proceeds of any Loans to be delivered in connection with any Borrowing Base Propertyfunded on the Effective Date;
(xvxi) 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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower certifying that the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence thereto[reserved]; and
(xixxii) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request.;
(b) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Trust 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 No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) the Borrower, the other Loan Parties The Trust and the other 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, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound; and, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of 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;
(e) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents;
(f) Upon the reasonable request of any Lender made through the Agent at least seven (7) Business Days prior to the Agreement Date, the Borrower and each other Loan Party shall have provided all to the Agent (and Agent shall forward to such Lender), and such Lender shall be reasonably satisfied with, the documentation and other information so requested by the Administrative Agent and each Lender in order to comply connection with applicable “know your customer” and antiAnti-money laundering rules and regulationsMoney Laundering Laws, including including, without limitation, the Patriot Act., in each case at least three (3) Business Days prior to the Agreement Date;
(g) At least five (5) Business Days prior to the Agreement Date, the Borrower shall deliver, to the Agent a Beneficial Ownership Certification in relation to the Borrower for any Lender that so requests through the Agent at least three (3) Business Days prior to the Agreement Date; and
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the BorrowerBorrowers, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower);
(iii) The Subsidiary the Guaranty executed by the applicable parties Guarantor initially to be a party thereto;
(iv) an opinion of counsel to the Borrower Borrowers and such other Loan Parties as the Administrative Agent may 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%);
(v) 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 BorrowerBorrowers, authorized to execute and deliver on behalf of the Borrower Borrowers Notices of Borrowing, Notices of Swingline Borrowing and requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as of the Cutoff Agreement Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s Borrowers’ fiscal quarter ending March 31, 20192012;
(xi) with respect to each Property identified on Schedule 4.1, each of the items referred to in Section 6.3 required to be delivered in connection with any Borrowing Base Property;
(xii) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiixiii) UCC, tax, judgment and lien search reports with respect to the Borrowers (or a Subsidiary if any Borrowing Base Property is owned by a Subsidiary) and each Borrowing Base Property in all necessary or appropriate jurisdictions indicating that there are no Liens of record on such Property other than Permitted Liens;
(xiv) copies of all Material Contracts and Specified Derivatives Contracts in existence on the Agreement Date;
(xv) copies of the form of Tenant Lease (if any) to be used for each Borrowing Base Property from the Agreement Date until the Maturity Date and each Tenant Lease entered into as of the Agreement Date with respect to such Property;
(xvi) the Fee Letter;
(xiiixvii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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;
(xvixviii) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 (including, without limitation, both property and liability insurance) is in full force and effect;
effect and stating that the coverage shall not be cancelable or materially changed without ten (xvii10) Beneficial Ownership Certifications from the Borrower and such other Persons as days prior written notice to the Administrative Agent of any cancellation for nonpayment or premiums, and Lenders shall reasonably require;
not less than thirty (xviii30) A certificate days prior written notice to the Administrative Agent of any other cancellation or any modification (including a reduction in coverage), together with appropriate evidence that the Administrative Agent, for its benefit and the benefit of the Borrower certifying Lenders, the Issuing Bank, and the Specified Derivatives Providers is named as a lender’s loss payee and additional insured, as appropriate, on all insurance policies that the Loans are permitted under Borrowers, any Senior Notes Indebtedness and/or Loan Party or any Senior Notes Indenture relating thereto together other Subsidiary actually maintains with supporting evidence theretorespect to any Property and improvements on such Property; and
(xix) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.; and
(b) In the good faith judgment of the Administrative Agent:
(i) there 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 Borrowers and its their Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or or, to Borrower’s knowledge, threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower Borrowers or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the Borrower, Borrowers and 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and;
(eiv) the Borrower Borrowers and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001));
(v) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and anti-money laundering rules adversely affect the transactions contemplated by the Loan Documents; and
(vi) the Parent, Borrowers and regulations, including without limitation, their Subsidiaries and Affiliates shall have permanently reduced any and all commitments available under the Patriot ActW▇▇▇▇ Fargo Repurchase Line of Credit to an aggregate amount not to exceed $12,000,000.
Appears in 1 contract
Sources: Credit Agreement (American Realty Capital Properties, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the satisfaction or waiver of the following conditions precedent:
(aa ) The Administrative Managing Agent shall have received each of the following, in form and substance satisfactory to the Administrative AgentLenders:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the each Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower2.8(a);
(iii) The Subsidiary Guaranty executed by An opinion of Suth▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇ren▇▇▇ ▇▇▇, counsel to the applicable parties theretoBorrower, addressed to the Managing Agent and the Lenders, in substantially the form of Exhibit G;
(iv) an opinion The Articles of counsel to the Borrower and such other Loan Parties as the Administrative Agent may 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%);
(v) 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) Incorporation of each Loan Party Borrower certified as of a recent date by the Secretary of State of the state State of formation of such Loan PartyMaryland;
(viv) a certificate of A good standing (or certificate of similar meaning) with respect to each Loan Party Borrower issued as of a recent date by the Secretary of State of the state 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 EffectMaryland;
(viivi) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party Borrower with respect to each of the officers of such Loan Party Borrower authorized to execute and deliver the Loan Documents to which such Loan Party Borrower is a party, party and in the case officers of the Borrower, such Borrower then authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and requests for Letters of Credit, Notices of Conversion Continuation and Notices of ContinuationConversion;
(viiivii) copies Copies (certified by the Secretary or Assistant Secretary (or other individual performing similar functionsof such Borrower) of each Loan Party of (A) the by-laws bylaws of such Loan 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 Borrower and of any other form of legal entity and (B) all corporate, partnership, member or other necessary corporate action taken by such Loan Party Borrower to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument of each of SBIC and SSBIC certified as of a recent date by the Secretary of State of the State of formation of such Subsidiary;
(ix) a Borrowing Base Certificate calculated A certificate of good standing or certificate of similar meaning with respect to each of SBIC and SSBIC issued as of a recent date by the Cutoff DateSecretary of State of the State of formation of each such Subsidiary;
(x) a Compliance Certificate calculated on a pro forma basis for Copies certified by the Borrower’s fiscal quarter ending March 31, 2019Secretary or Assistant Secretary of each of SBIC and SSBIC (or other individual performing similar functions) of the by-laws of each of SBIC and SSBIC;
(xi) a Disbursement Instruction Agreement effective as A copy of each of the Agreement Datedocuments, instruments and agreements evidencing any of the Indebtedness described on Schedule 6.1(g) (other than the Indebtedness to Rigg▇ ▇▇▇k N.
A.) and a copy of each Material Contract, certified as true, correct and complete by the chief financial officer of the Company;
(xii) Evidence that all insurance required to be maintained by the Fee LetterCompany and the Subsidiaries under the terms of the Loan Documents is in effect, or a certificate of an officer of the Company to such effect;
(xiii) evidence that the Fees, if any, The Fees then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid3.6;
(xiv) with respect Evidence that the merger described in the Proxy has been completed as described in the Proxy without any change from the description thereof contained in the Proxy, unless such change is consented to each Borrowing Base Property identified on Schedule 4.1, each of by the items referred to in Section 6.3 required to be delivered in connection with any Borrowing Base PropertyLenders;
(xv) UCC, tax, judgment and lien search reports Subordination agreements with respect to the any intercompany Indebtedness of a Borrower and each other Loan Party in all jurisdictions reasonably requested or a Guarantor permitted by the Administrative Agent indicating that there are no liens of record on such property other than Permitted LiensSection 9.2(a)(4);
(xvi) insurance certificatesA pro-forma Compliance Certificate and a pro-forma Borrowing Base Certificate of each Borrower, or other evidenceeach calculated as of the fiscal quarter ending December 31, providing that the insurance coverage required under Section 8.5 is in full force and effect;1997; and
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Managing Agent on behalf of the Administrative Agent, Lenders 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 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 (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the reasonable satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties heretohereto (which, subject to Section 13.13(b), may include any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page that such party has signed a counterpart of this Agreement or such Loan Document);
(ii) Revolving to the extent requested by the Lenders, Notes executed made by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower2.10(a);
(iii) The Subsidiary the Guaranty executed by each of the applicable parties Guarantors initially to be a party thereto;
(iv) an opinion of each of (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestand (B) ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Maryland counsel to Spirit REIT, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to covering the matters reasonably required by 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%);
(v) 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 (or equivalent Governmental Authority) 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 Effectdate;
(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, authorized to execute and deliver 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;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) 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 31June 30, 20192022;
(xix) a Disbursement Instruction Agreement completed Borrower Administrative Questionnaire effective as of the Agreement Date;
(xi) [reserved];
(xii) copies of all Material Contracts and confirmations relating to Specified Derivatives Contracts in existence on the Agreement Date;
(xiii) the Fee Letter;
(xiiixiv) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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;; and
(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 its jurisdiction of organization indicating that there are no liens of record on such property other than Permitted Liens;
(xvi) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.
(b) there shall not have occurred or become known to any material adverse change in the Administrative Agent or any of the Lenders any event, condition, situation or status Borrower’s financial condition since the date of the information contained in most recent quarterly financial statement filed with 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 SEC on Form 10-K prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effectdate of this Agreement;
(c) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(ei) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitationthe Patriot Act and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Effective Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the Patriot Actcondition set forth in this clause (ii) shall be deemed to be satisfied).
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is and the effectiveness of the amendment, restatement and consolidation of the Existing Credit Facilities to be effect by this Agreement, are subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable requesting Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a) 2.11.(a), and the Swingline Note executed by the Borrower;
(iii) The Subsidiary the Guaranty executed by the applicable parties Parent and each of the other Guarantors initially to be a party thereto;
(iv) an opinion of legal counsel to the Borrower and such the other Loan Parties as Parties, reasonably satisfactory to the Administrative Agent may requestAgent, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to covering such matters as 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%)Agent may reasonably request;
(v) 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, authorized to execute and deliver on behalf of the Borrower Notices of Revolving Borrowing, Notices of Term Loan Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as of the Cutoff Date;
(x) a Compliance Certificate calculated on a pro forma basis for the BorrowerParent’s fiscal quarter ending March December 31, 20192013, giving pro forma effect to the making of any Loan to be made on the Effective Date;
(xix) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) evidence that all accrued and unpaid interest and fees owing by the Loan Parties under the Existing Credit Facilities have been paid in full;
(xii) a Notice of Term Loan Borrowing executed by the Fee LetterBorrower with respect to the 5-Year Term Loans to be made on the Effective Date;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xiv) with respect to each Borrowing Base Property identified on Schedule 4.1, each of the items referred to in Section 6.3 if 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) Agent, insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 7.5. (including, without limitation, both property and liability insurance) is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xixxv) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, Agent may reasonably request.; and
(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 business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in have a Material Adverse Effect;
(c) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect Effect, other than as previously disclosed to Administrative Agent and the Lenders in writing and approved by the Administrative Agent and Lenders in writing, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) the BorrowerParent, the other Loan Parties Borrower and the other their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is boundbound except for such approvals, consents, waivers, filings and notices the receipt, making or giving of 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 Parent, the Borrower or any other Loan Party to fulfill their respective obligations under the Loan Documents to which it is a party; and
(e) the Parent, the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Initial Conditions Precedent. The effectiveness of this Agreement and obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties heretohereto (which, subject to Section 12.14, may include any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page);
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms applicable provisions of Section 2.12(a) and the Swingline Note executed by the Borrower2.8;
(iii) The Subsidiary the Facility Guaranty executed by the applicable parties theretoParent and each other Person that the Borrower elects to make a Guarantor on the Effective Date;
(iv) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and Agent, the Lenders Lenders, in a form and substance reasonably 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%);
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party, or, in the case of the Parent only, certified by the Secretary or Assistant Secretary of the Parent;
(vi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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 the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party or its constituent partners or members authorized to execute and deliver the Loan Documents to which such Loan Party is a partyparty and, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing and requests for Letters of Credit, Notices of Conversion Continuation and Notices of ContinuationConversion;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as certificate from a Responsible Officer of the Cutoff DateParent and the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects and (y) immediately after giving effect to the transactions contemplated by this Agreement, no Default or Event of Default shall exist;
(x) a Compliance Certificate calculated the Fees then due and payable under Section 3.6, and any other Fees payable to the Agent, the Titled Agents and the Lenders on a pro forma basis for or prior to the Borrower’s fiscal quarter ending March 31, 2019Effective Date;
(xi) a Disbursement Instruction Agreement effective Compliance Certificate calculated as of March 31, 2022 (and, if any Loans are funded on the Effective Date, updated to give pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of any Loans funded on the Effective Date);
(xii) the Fee Letter[reserved];
(xiiiA) evidence all documentation and other information about the Loan Parties as shall have been reasonably requested by the Agent or any Lender that the Feesit shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, if anyincluding, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees Patriot Act and expenses of counsel (B) to the Administrative Agentextent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, have been paid;
(xiv) with respect at least five days prior to each Borrowing Base Property identified on Schedule 4.1the Effective Date, each of the items referred to any Lender that has requested, 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 a written notice to the Borrower and each other Loan Party in all jurisdictions reasonably requested by at least 10 days prior to the Administrative Agent indicating that there are no liens of record on such property other than Permitted Liens;
(xvi) insurance certificatesEffective Date, or other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) a Beneficial Ownership Certifications from Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such other Persons as Lender of its signature page to this Agreement, the Administrative Agent and Lenders condition set forth in this clause (B) shall reasonably require;
(xviii) A certificate of the Borrower certifying that the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence theretobe deemed to be satisfied); and
(xixxiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request.; and
(b) there In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and Parent or its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date since December 31, 2021 that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the BorrowerThe Parent, the other Loan Parties Borrower and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Parent, the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which 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 Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the Borrower and each other Loan Party shall have provided all information requested 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 ActLoan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (Piedmont Office Realty Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each applicable Lender (but excluding including any Lender that has requested that it not receive NotesDesignated Lender, if applicable) and complying with the terms of Section 2.12(a2.11.
(a) and the Swingline Note executed by the Borrower;
(iii) The Subsidiary the Guaranty executed by each of the applicable parties Guarantors, if applicable, initially to be a party thereto;
(iv) an opinion of Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders and covering the matters set forth 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%)Exhibit O;
(v) 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, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) 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;
(xix) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiixi) the Fee Letter[intentionally omitted];
(xiiixii) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the LendersArrangers, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been 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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xixxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.; and
(b) In the good faith judgment of the Administrative Agent:
(i) there 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;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the Borrower, the other Loan Parties Borrower and the other 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which could 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;
(eiv) the Borrower and each other Loan Party shall have provided all to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent and each Lender in order to comply with the requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations;
(v) each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, including without limitationand any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five Business Days prior to the Patriot ActAgreement Date; and
(vi) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders Lender to effect make any Loans or permit the occurrence issue any Letters of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent Lender shall have received each of the following, in form and substance satisfactory to the Administrative AgentLender:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) The Revolving Notes Credit Note and the Term Note executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms provisions of Section 2.12(a) and the Swingline Note executed by the Borrower2.8.;
(iii) The Security Agreement executed by Borrower and the Subsidiary Guaranty Security Agreement executed by the applicable parties thereto;Domestic Material Subsidiaries together with (i) such UCC-1 financing statements as may be reasonably required by the Lender in order to perfect the Lender's security interest in all of the collateral described in the Security Agreement and in the Subsidiary Security Agreement and (ii) a Perfection Certificate executed by Borrower.
(iv) an opinion of counsel to the Borrower and such other Loan Parties The Guaranty executed by each Domestic Material Subsidiary existing as the Administrative Agent may 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%)Effective Date;
(v) The Pledge Agreement executed by the certificate or Borrower, together with all certificates and stock powers, undated and executed in blank, constituting Pledged Shares (as such term is defined in the Pledge Agreement) required to be delivered to the Lender in accordance with the Pledge Agreement;
(vi) Each of the Mortgages executed by the applicable Loan Parties;
(vii) The Environmental Indemnity Agreement executed by the Loan Parties.
(viii) An opinion of outside counsel to the Loan Parties, addressed to the Lender, addressing the matters set forth in Exhibit D, the content of which shall be reasonably satisfactory to Lender;
(ix) The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state jurisdiction of formation of such Loan Party;
(vix) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state jurisdiction of formation of each such Loan Party the Borrower or Continuing Subsidiary, 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 jurisdiction in which such any Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viixi) 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 in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing and requests for Letters of Credit, Notices of Conversion Continuation and Notices of ContinuationConversion;
(viiixii) copies Copies certified by the Secretary or Assistant Secretary of each Loan Party (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) 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 effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, The Fees then due and payable under Section 3.53.3., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paidLender;
(xiv) A pro forma calculation showing compliance with respect to each Borrowing Base Property identified on Schedule 4.1, each of the items referred to financial covenants set forth in Section 6.3 required to be delivered 9.1. hereof, calculated as of March 31, 2005, which shall include a reasonable estimate of fees and expenses incurred in connection with any Borrowing Base Property;this Agreement and which shall include in Consolidated Total Senior Funded Debt the principal amount of Indebtedness owed to the Junior Lenders that will be refinanced by proceeds of the Revolving Credit Loans on the Effective Date.
(xv) UCCA commitment for a lender's policy of title insurance insuring each of the Mortgages and the parcels of real property described therein, taxin such form and with such coverage endorsements, judgment without standard exceptions and lien search reports with respect containing only those exceptions which are reasonably acceptable to the Borrower and each other Loan Party in all jurisdictions reasonably requested by the Administrative Agent indicating that there are no liens Lender, with evidence of record on such property other than Permitted Lienspayment of premium therefor;
(xvi) insurance certificatesA recent ALTA land survey of each parcel of real property described in the Mortgages, and evidence satisfactory to the Lender in its sole discretion that none of the real property described in the Mortgages lies in an area requiring special notices of flood hazard issues or other evidence, providing evidence that the insurance coverage required under Section 8.5 is in full force and effectBorrower has purchased flood hazard insurance;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements and instruments as the 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 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 (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each applicable Lender (but excluding including any Lender that has requested that it not receive NotesDesignated Lender, if applicable) and complying with the terms of Section 2.12(a2.11.
(a) and the Swingline Note executed by the Borrower;
(iii) The Subsidiary the Guaranty executed by each of the applicable parties Guarantors, if applicable, initially to be a party thereto;
(iv) an opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders and covering the matters set forth 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%)Exhibit O;
(v) 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, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) 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 31June 30, 20192022;
(xix) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiixi) the Fee Letter[intentionally omitted];
(xiiixii) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the LendersArrangers, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been 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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xixxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.; and
(b) In the good faith judgment of the Administrative Agent:
(i) there 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;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the Borrower, the other Loan Parties Borrower and the other 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which could 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;
(eiv) the Borrower and each other Loan Party shall have provided all to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent and each Lender in order to comply with the requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations;
(v) each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, including without limitationand any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five Business Days prior to the Patriot ActAgreement Date; and
(vi) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding other than any Lender that has requested that it not receive Notesa Note) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower2.8.(a);
(iii) The Subsidiary the Guaranty executed by the applicable parties Parent and each of the other Guarantors initially to be a party thereto;
(iv) an opinion of legal counsel to the Borrower and such the other Loan Parties as Parties, reasonably satisfactory to the Administrative Agent may requestAgent, addressed to the Administrative Agent and the Lenders and covering the matters set forth 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%)Exhibit G;
(v) 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, authorized to execute and deliver on behalf of the Borrower Notices that Notice of Borrowing, Notices of Swingline Borrowing and requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as of the Cutoff Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s Parent's fiscal quarter ending March 31June 30, 20192012;
(xi) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xii) the Fee Letter;
(xiiix) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xivxi) with respect to each Borrowing Base Property identified on Schedule 4.1, each of the items referred to in Section 6.3 if 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) Agent, insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 7.5. (including, without limitation, both property and liability insurance) is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xixxii) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through Agent may reasonably request; and
(b) In the good faith judgment of the Administrative Agent, may reasonably request.:
(bi) 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 Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect Effect, other than as previously disclosed to Administrative Agent and the Lenders in writing and approved by the Administrative Agent and Lenders in writing, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the BorrowerParent, the other Loan Parties Borrower and the other their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; andbound except for such approvals, consents, waivers, filings and notices the receipt, making or giving of 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 Parent, the Borrower or any other Loan Party to fulfill their respective obligations under the Loan Documents to which it is a party;
(eiv) the Parent, the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “"know your customer” " and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(v) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower2.9.(a);
(iii) The Subsidiary the Guaranty executed by each of the applicable parties theretoParent and each Material Subsidiary (other than an Excluded Subsidiary or a Foreign Subsidiary) existing as of the Effective Date;
(iv) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may 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%);
(v) 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 (x) as of a recent date by the Secretary of State of the state of formation of such Loan PartyParty and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement Date;
(viv) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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;
(viivi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing Conversion, Notices of Continuation and requests for to request issuance of Letters of Credit, Notices of Conversion and Notices of Continuation;
(viiivii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ixviii) a Borrowing Base Certificate calculated as an opinion of counsel to the Cutoff DateLoan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit H;
(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 effective as of the Agreement Date;
(xii) the Fee Letter;
(xiiiix) evidence that the Fees, if any, Fees then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xivx) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) with respect to each Borrowing Base Property identified on Schedule 4.1., each of the items referred to in Section 6.3 4.1.(b)(i), (ii), (iv) and (vi) required to be delivered in connection with any Unencumbered Borrowing Base Property;
(xv) UCC, tax, judgment Property and lien search reports a pro forma operating budget for such Property 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 Lienscurrent fiscal year;
(xvixii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 8.5. (including, without limitation, both property and liability insurance) is in full force and effect;
(xviixiv) Beneficial Ownership Certifications from the Borrower and such other Persons as an Appraisal for each Property addressed to the Administrative Agent and Lenders shall otherwise in form and substance reasonably require;
(xviii) A certificate of acceptable to the Borrower certifying that the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence theretoAdministrative Agent; and
(xixxv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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 Parent, 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;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(diii) the BorrowerParent, the other Loan Parties Borrower and the other 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (eA) 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 and each or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall have provided all information requested by the Administrative Agent and each Lender in order not apply to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot ActAccommodation Subsidiaries that are not also Material Subsidiaries.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) all Lenders, and complying with the terms of Section 2.12(a) 2.12.; and the Swingline Note executed by the Borrower;
(iii) The Subsidiary the Guaranty executed by each of the applicable parties Guarantors initially to be a party thereto;
(iv) an opinion of Arent Fox LLP, counsel to the Borrower and such other Loan Parties as the Administrative Agent may requestGuarantors, and addressed to the Administrative Agent and the Lenders and covering the matters set forth 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%)Exhibit O;
(v) the certificate or articles of incorporation or formationincorporation, 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 PartyPerson;
(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 Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party Person is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(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 Person authorized to execute and deliver the Loan Documents to which such Loan Party Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan PartyPerson, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Transfer Authorizer Designation Form effective as of the Agreement Date;
(x) an Unencumbered Pool Certificate calculated as of the Cutoff Effective Date;
(xxi) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2019;
(xi) a Disbursement Instruction Agreement effective as of the Agreement Date2007;
(xii) the Fee Letterintentionally deleted;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.53.6., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;; and
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.; and
(b) there In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(cii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(diii) the Borrower, The Borrower and 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
, 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 (e1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower and each or any other Loan Party shall have provided all information requested by to fulfill its obligations under the Administrative Agent and each Lender in order Loan Documents to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Actwhich it is a party.
Appears in 1 contract
Sources: Credit Agreement (Washington Real Estate Investment Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The 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 Loan Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) requesting a Revolving Note or Term Loan Note and complying with the terms applicable provisions of Section 2.12(a) 2.11., and the Swingline Note executed by the Borrower;
(iii) The the Guaranty executed by KRG Magellan, each Subsidiary that owns or leases an Initial Unencumbered Pool Property and any Subsidiary which is otherwise required to be a Guarantor pursuant to Section 4.3., if any, as of the Effective Date, and the Springing Guaranty executed by the applicable parties theretoParent;
(iv) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may 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%);
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan PartyParty or a certification from the Secretary of the Parent that there have been no changes to such organizational instrument since the date such organizational instrument was previously provided to the Agent;
(viv) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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 the 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 Effecthas its principal place of business;
(viivi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing Borrowings, Notices of Continuation and requests for Letters of Credit, Notices of Conversion and Notices to request the issuance of ContinuationLetters of Credit;
(viiivii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity or a certification from the Secretary of the Parent that there have been no changes to such documents since the date such document was previously provided to the Agent and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, in form reasonably satisfactory to the Agent;
(ix) a Borrowing Base Certificate calculated as of the Cutoff Fees then due and payable under Section 3.6., and any other Fees payable to the Agent and the Lenders on or prior to the Effective Date to the extent such Fees have been invoiced prior to the Effective Date;
(x) a Compliance Certificate calculated on a as of the Effective Date (using unaudited pro forma basis for the Borrower’s fiscal quarter ending consolidated figures as of March 31, 20192014 after giving effect to the merger of Inland Diversified with and into KRG Magellan and giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) a Disbursement Instruction Agreement effective as of the Agreement Date[Reserved];
(xii) closing of the Fee Lettermerger of Inland Diversified into KRG Magellan;
(xiii) evidence that if applicable, a disbursement statement setting forth in reasonable detail the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any application of the Lenders, including without limitation, initial Loans being funded on the fees and expenses of counsel to the Administrative Agent, have been paidEffective Date;
(xiv) with respect evidence that any lenders under the Existing Credit Agreement and the Existing Term Loan Agreement that are not becoming or continuing (as applicable) as Lenders hereunder have agreed to each Borrowing Base Property identified on Schedule 4.1accept repayment of all amounts due them under the Existing Credit Agreement and the Existing Term Loan Agreement and terminate their commitments thereunder, each of the items referred to in Section 6.3 required to be delivered in connection with any Borrowing Base Propertyas applicable;
(xv) UCCevidence of the release of Parent from any guaranty, taxincluding, judgment and lien search reports without limitation, the guaranty in favor of The Huntington National Bank 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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower certifying that the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence theretoParkside Town Commons project; and
(xixxvi) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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 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;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(diii) the BorrowerParent, the other Loan Parties Borrower and the its 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, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound; and
, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (eA) 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 and each or any other Loan Party shall have provided all information requested by to fulfill its obligations under the Administrative Loan Documents to which it is a party or the ability of the Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Actexercise its remedies hereunder.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(iiA) Revolving Five Year Term Notes executed by the Borrower, payable to each applicable Five Year Term Lender (but excluding other than any Five Year Term Lender that has requested that it not receive Notesa Five Year Term Note) and complying with the terms applicable provisions of Section 2.12(a2.8.(a) and the Swingline Note (B) Seven Year Term Notes executed by the Borrower, payable to each Seven Year Term Lender (other than any Seven Year Term Lender that has requested that it not receive a Seven Year Term Note) and complying with the applicable provisions of Section 2.8.(b);
(iii) The Subsidiary Guaranty executed by the applicable parties theretoParent and each other Guarantor existing as of the Effective Date;
(iv) an A Transfer Authorizer Designation Form effective as of the Agreement Date;
(v) An opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may requestParties, 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 Yorkand, the Borrower shall not be required to deliver due executionLenders, authority and delivery opinions with respect to any Subsidiary Guarantor that is organized under addressing 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%)matters set forth in Exhibit H;
(vvi) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the Secretary of State (or comparable official) of the state of formation of such Loan Party;
(vivii) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State (or comparable official) of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (or comparable official and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viiviii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver on behalf the officers of the Borrower Notices then authorized to deliver the Notice of Borrowing, Notices of Swingline Borrowing and requests for Letters of Credit, Notices of Conversion and Notices of ContinuationContinuation and Notices of Conversion;
(viiiix) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ax) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (By) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as of the Cutoff Date;
(x) a Compliance Certificate calculated on a pro forma basis for If requested by the Borrower’s fiscal quarter ending March 31Administrative Agent, 2019certificates of insurance evidencing the existence of all insurance required to be maintained by Loan Parties pursuant to the Agreement, and the Administrative Agent shall be reasonably satisfied with the type and extent of such coverage;
(xi) a Disbursement Instruction Agreement effective as of The Fees then due and payable under Section 3.6., and any other Fees payable to the Agreement Administrative Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(xii) A Compliance Certificate calculated as of March 31, 2011 (giving pro forma effect to the Fee Letter;financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date); and
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request.; and
(b) there 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 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 the other 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;
(cii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the BorrowerThe Parent, the other Loan Parties Borrower and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which 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 Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) There shall not have occurred or exist any other material adverse change or material disruption in the Borrower and each other Loan Party shall have provided all information requested by loan syndication, financial, banking or capital markets that, in the Administrative Agent and each Lender in order reasonable judgment of the Sole Lead Arranger, has impaired or could reasonably be expected to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitationimpair, the Patriot Actsyndication of the Loans, either (i) occurring on or after May 18, 2011, or (ii) occurring prior to May 18, 2011 but becoming known to the Sole Lead Arranger after May 18, 2011.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan any Revolving Loans or Bid Rate Loans, or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Documentation Agent shall have received each of the following, in form and substance satisfactory to the Administrative AgentArranging Agents:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a2.10.(a) and the Swingline Note executed by the Borrower(b);
(iiiA) The Subsidiary Guaranty executed by An opinion of Shulman, Rogers, Gandal, Pordy & ▇▇▇▇▇, P.A., counsel to the applicable parties theretoBorrower, addressed to the Arranging Agents and the Lenders, in substantially the form of Exhibit M-1 and (B) an opinion of Kennedy, Covington, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P., local North Carolina counsel to the Borrower, addressed the Arranging Agents and the Lenders, in substantially the form of Exhibit M-2;
(iv) an opinion the declaration of counsel to the Borrower and such other Loan Parties as the Administrative Agent may 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 trust of the Borrower and/or certified as of a recent date by the Subsidiary Guarantors for such State to the total aggregate amount Department of sales for Borrower and/or the Subsidiary Guarantors is less than or equal to four percent (4%) or (B) the percentage Consumer and Regulatory Affairs of the aggregate assets District 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%)Columbia;
(v) a good standing certificate issued as of a recent date by the Department of Consumer and Regulatory Affairs of the District of Columbia and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party and the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) certified copies (certified by the Secretary or Assistant Secretary of the Borrower) of all action taken by the Borrower's Board of Trustees to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) A Guaranty executed by each Material Subsidiary other than any Non-Guarantor Subsidiary in substantially the form of Exhibit C; (ix) The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of each Loan Party Material Subsidiary certified as of a recent date by the Secretary of State of the state of formation of such Loan Party;
Material Subsidiary; (vix) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party Material Subsidiary issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party Material Subsidiary 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 Material Subsidiary is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(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, authorized to execute and deliver 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;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) 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 effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements and instruments as the 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 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 (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms applicable provisions of Section 2.12(a) and the Swingline Note executed by the Borrower2.8;
(iii) The Subsidiary the Facility Guaranty executed by the applicable parties theretoParent and each other Person that the Borrower elects to make a Guarantor on the Effective Date;
(iv) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and Agent, the Lenders Lenders, in a form and substance reasonably 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%);
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party, or, in the case of the Parent only, certified by the Secretary or Assistant Secretary of the Parent;
(vi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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 the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party or its constituent partners or members authorized to execute and deliver the Loan Documents to which such Loan Party is a partyparty and, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower Notices then authorized to deliver the Notice of Borrowing, Notices of Swingline Borrowing and requests for Letters of Credit, Notices of Conversion Continuation and Notices of ContinuationConversion;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as certificate from a Responsible Officer of the Cutoff DateParent and the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects and (y) immediately after giving effect to the transactions contemplated by this Agreement, no Default or Event of Default shall exist;
(x) a Compliance Certificate calculated the Fees then due and payable under Section 3.6, and any other Fees payable to the Agent, the Titled Agents and the Lenders on a pro forma basis for or prior to the Borrower’s fiscal quarter ending March 31, 2019Effective Date;
(xi) a Disbursement Instruction Agreement effective Compliance Certificate calculated as of September 30, 2011 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xii) the Fee Letter;
(xiii) evidence that Notice of Borrowing from the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable Borrower for the Loans indicating how the proceeds thereof are to be made available to the Administrative Agent Borrower, and if any of the Lenders, including without limitationLoans initially are to be LIBOR Loans, the fees and expenses of counsel to the Administrative Agent, have been 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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower certifying that the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence theretoInterest Periods therefore; and
(xixxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request.; and
(b) there In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and Parent or its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date since December 31, 2010 that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the BorrowerThe Parent, the other Loan Parties Borrower and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Parent, the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which 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 Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the Borrower and each other Loan Party shall have provided all information requested 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 ActLoan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (Piedmont Office Realty Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the Closing Date will occur upon satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each applicable Lender (but excluding all Lenders or any Lender that has requested that it not receive Notes) Designated Lender, if applicable, and complying with the terms of Section 2.12(a) 2.11.; and the Swingline Note executed by the Borrower;
(iii) The Subsidiary the Guaranty executed by each of the applicable parties Guarantors initially to be a party thereto;
(iv) (A) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and such other Loan Parties as the Administrative Agent may requestGuarantors, addressed to the Administrative Agent and the Lenders and covering the matters set forth in a form and substance satisfactory to the Administrative Agent; providedExhibit N-1, 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) an opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel to the percentage Borrower, addressed to the Agent and the Lenders and covering the matters set forth in Exhibit N-2, and (C) an opinion of the aggregate assets of the Borrower and/or the Subsidiary Guarantors for such State Borrower’s general counsel addressed to the total aggregate amount of assets for Agent and the Borrower and/or Lenders and covering the Subsidiary Guarantors is less than or equal to four percent (4%)matters set forth in Exhibit N-3;
(v) the certificate or articles of incorporation or formationincorporation, 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 PartyPerson;
(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 Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party Person is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(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 Person authorized to execute and deliver the Loan Documents to which such Loan Party Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and requests for Letters of CreditBorrowing, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan PartyPerson, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base an Unencumbered Pool Certificate calculated as of the Cutoff DateMarch 31, 2005;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 20192005;
(xi) a Disbursement Instruction Agreement effective as Closing Certificate substantially in form of Exhibit R, executed on behalf of the Agreement DateBorrower by an authorized officer of the Borrower;
(xii) evidence satisfactory to the Fee Letter;
(xiii) evidence Agent that the Fees, if any, then due and payable under Section 3.53.6., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xixxiii) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.; and
(b) there In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(cii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which is reasonably likely to be adversely determined, and, if adversely determined, could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the Borrower, The Borrower and 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the Borrower and each other Loan Party shall have provided all information requested 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 ActLoan Documents.
Appears in 1 contract
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is are subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to each applicable Lender (but excluding other than any Lender that has requested that it not receive Notesa Note) and complying with the terms of Section 2.12(a2.11.
(a) and the Swingline Note executed by the Borrower;
(iii) The Subsidiary the Guaranty executed by each of the applicable parties Guarantors, if any, initially to be a party thereto;
(iv) an opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, and an opinion of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to covering such matters as 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%)Agent may reasonably request;
(v) 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 - 80 - 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 EffectEffect and each state in which a Collateral Property owned by such Loan Party is located;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Compliance Certificate calculated as of the Cutoff Date;
(x) a Compliance Certificate calculated Effective Date on a pro forma basis for the Borrower’s fiscal quarter ending March December 31, 20192017;
(xix) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xii) the Fee Letter;
(xiiixi) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xivxii) with respect to a copy of all Operating Agreements, all Ancillary Agreements, the Business Management Agreement, the Property Management Agreement, in each Borrowing Base Property identified on Schedule 4.1case certified as true, each correct and complete by the chief operating officer or chief financial officer 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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower certifying that the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence theretoBorrower; and
(xixxiii) such other documents, agreements and instruments as the 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 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 (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) the Borrower, the other Loan Parties Borrower and the other 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, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(f) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, this Agreement is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding other than any Lender that has requested that it not receive Notesa Note) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower2.10.(a);
(iii) The Subsidiary the Guaranty executed by each of the applicable parties theretoGuarantors, if any, initially required to be a party thereto pursuant to Section 7.13.;
(iv) an opinion of S▇▇▇▇▇▇▇ & Worcester LLP, and an opinion of S▇▇▇ ▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to covering such matters as 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%)Agent may reasonably request;
(v) 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 EffectEffect and each state in which a Collateral Property owned by such Loan Party is located;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver on behalf of the Borrower Notices the Notice of Borrowing, Notices of Swingline Borrowing and requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Compliance Certificate calculated as of the Cutoff Date;
(x) a Compliance Certificate calculated Effective Date on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 20192017;
(xix) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiixi) the Fee Letter[intentionally omitted];
(xiiixii) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xivxiii) 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 Letter executed by the Administrative Agent indicating that there are no liens of record on such property other than Permitted Liens;
(xvi) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower certifying that the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence theretoBorrower; and
(xixxiv) such other documents, agreements and instruments as the 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 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 (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) the Borrower, the other Loan Parties Borrower and the other 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, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which could not reasonably be likely to (x) have a Material Adverse Effect, or (y) 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;
(e) there shall not have occurred or exist any material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents; and
(ef) the Borrower and each other Loan Party shall have provided all information requested in writing by the Administrative Agent and each Lender at least five Business Days prior to the Effective Date in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes (except for any Lender who has requested not to receive a promissory note), executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms applicable provisions of Section 2.12(a) 2.11, and the Swingline Note executed by the Borrower;
(iii) The Subsidiary the Facility Guaranty executed by the applicable parties theretoParent and each other Person that the Borrower elects to make a Guarantor on the Effective Date;
(iv) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent Agent, the Lenders and the Lenders Swingline Lender addressing the matters set forth 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%)Exhibit N;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party, or, in the case of the Parent only, certified by the Secretary or Assistant Secretary of the Parent;
(vi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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 the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party or its constituent partners or members authorized to execute and deliver the Loan Documents to which such Loan Party is a partyparty and, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation and requests for Letters of Credit, Notices of Conversion and Notices to request the issuance of ContinuationLetters of Credit;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as certificate from a Responsible Officer of the Cutoff DateParent and the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects and (y) immediately after giving effect to the transactions contemplated by this Agreement, no Default or Event of Default shall exist;
(x) a Compliance Certificate calculated the Fees then due and payable under Section 3.6, and any other Fees payable to the Agent, the Titled Agents and the Lenders on a pro forma basis for or prior to the Borrower’s fiscal quarter ending March 31, 2019Effective Date;
(xi) a Disbursement Instruction Agreement effective Compliance Certificate calculated as of June 30, 2012 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xii) evidence that, simultaneously with the Fee Letterexecution of this Agreement, the Credit Agreement dated as of August 31, 2007 among the Borrower, the Parent, the lenders party thereto and Wachovia Bank, N.A., as administrative agent, has been paid in full and that all commitments thereunder have been irrevocably terminated;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable a copy of an executed amendment to the Administrative Existing Term Loan Facility by which the covenants thereunder are conformed to the covenants set forth herein, in form and substance reasonably satisfactory to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been 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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower certifying that the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence theretoBorrower; and
(xixxiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request., including all documentation and other information requested by any Lender not less than five (5) Business Days prior to the Agreement Date that is required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including information described in Section 12.13 with respect to the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)); and
(b) there In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and Parent or its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date since December 31, 2011 that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the BorrowerThe Parent, the other Loan Parties Borrower and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Parent, the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which 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 Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the Borrower and each other Loan Party shall have provided all information requested 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 ActLoan Documents.
Appears in 1 contract
Sources: Revolving Credit Agreement (Piedmont Office Realty Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of make the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Advance hereunder is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower2.8.;
(iii) The Subsidiary the Parent Guaranty executed by the applicable parties theretoParent;
(iv) an opinion of counsel to of the Borrower Parent and such other the Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in a form Article VI hereof and substance satisfactory such additional matters relating 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%)transactions contemplated hereby as Agent may request;
(v) a certificate signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party and the Parent certifying that there has been no change to the certificate or articles of incorporation or formationincorporation, articles of organization, partnership agreement, certificate of limited partnership, declaration of trust or trust, operating agreement, by-laws and other comparable organizational instrument (if any) instruments of each Loan Party certified as and the Parent since June 18, 2004 (the date of a the most recent date certification signed by the Assistant Secretary of State of the state of formation of such Loan PartyParent);
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party and the Parent issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party Person is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party and the Parent with respect to each of the officers of such Loan Party Person authorized to execute and deliver the Loan Documents to which such Loan Party Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
; (viii) copies certified by the Secretary or Assistant Secretary of each Loan Party and the Parent (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) 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 effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements and instruments as the 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 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 (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Sources: Unsecured Credit Agreement (CBL & Associates Properties Inc)
Initial Conditions Precedent. The No Lender has any obligation of the Lenders to effect make its first Revolving Loan Advance, Swing Line Advance or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedentCompetitive Bid Advance unless:
(a) The Administrative Agent shall have received each all of the followingfollowing with copies for each Lender, at Administrative Agent's office in form Midland, Texas:
(1) This Agreement, the Notes, those Security Instruments and Guaranties listed on Schedule 5 hereto, any other documents required in connection herewith, each duly executed and delivered and in form, substance and date satisfactory to the Administrative AgentManaging Agents.
(2) The following certificates:
(i) counterparts an "Omnibus Certificate" of the Secretary or an Assistant Secretary and of a Designated Officer, which shall contain the names and signatures of the officers of Borrower authorized to execute Loan Documents and which shall certify to the truth, correctness and completeness of the following exhibits attached thereto: (A) a copy of resolutions duly adopted by the Board of Directors of Borrower and in full force and effect at the time this Agreement is entered into, authorizing the execution of this Agreement executed by each and the other Loan Documents delivered or to be delivered in connection herewith and the consummation of the parties hereto;transactions contemplated herein and therein, (B) a copy of the charter documents of Borrower and all amendments thereto, certified by the appropriate official of Borrower's jurisdiction of organization, and (C) a copy of the bylaws or similar governing documents of Borrower (provided that, to the extent Borrower has previously provided Administrative Agent certified copies of the documents described in (B) and (C) above, such Omnibus Certificate may omit such documents, but shall include a statement that such documents have not been modified in any respect since the date last so provided to Administrative Agent, except as may be specifically noted in such Omnibus Certificate with appropriate attachments); and
(ii) a "Compliance Certificate" of a Designated Officer of Borrower, of even date with such Revolving Notes executed Loan Advance, Swing Line Advance or Competitive Bid Advance, in which such officer certifies to the satisfaction of the conditions set out in Section 3.2(a) and (b) and that all conditions hereunder have been satisfied.
(3) A certificate (or certificates) of the due formation, valid existence and good standing of Borrower in its jurisdiction of organization, issued by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms appropriate authorities of Section 2.12(a) and the Swingline Note executed by the Borrower;such jurisdiction.
(iii4) The Subsidiary Guaranty executed by the applicable parties thereto;
(iv) an favorable opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may requestfor Borrower, addressed to the Administrative Agent Parent and the Lenders Restricted Subsidiaries, given upon their express instructions substantially in a the 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%);set forth as Exhibit H attached hereto.
(v5) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if anyDocuments similar to those specified in Section 3.1(a)(2)(i) 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 meaningand 3.1(a)(3) with respect to (i) Parent and (ii) each Loan Party issued as Restricted Subsidiary which is or will be party to a Security Instrument or Guaranty on the date hereof.
(6) A certificate of a recent Designated Officer of Borrower as to insurance concerning the material assets of Obligors. Lenders agree that Obligors' insurance coverage disclosed on Schedule 4 is acceptable at the date hereof.
(b) Except as disclosed to the Lenders in the Disclosure Schedule or otherwise in writing prior to the execution hereof and not objected to by the Secretary Required Lenders, there shall be no pending or threatened litigation, action or proceeding against Borrower, Parent, Petroleum or Mesa or any 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 taxationtheir respective Subsidiaries which, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified if adversely determined, 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, authorized to execute and deliver 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;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) 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 effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.
(bc) there No event or condition shall not have occurred or become known to the Administrative Agent or any of the Lenders any eventsince December 31, condition1996, 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 which is reasonably be expected to result in a Material Adverse Effect;.
(cd) no litigationAfter giving effect to such Revolving Loan Advances, actionCompetitive Bid Advances and Swing Line Advances, suit, investigation or other arbitral, administrative or judicial proceeding Borrower and Lenders shall be pending or threatened which could reasonably be expected in compliance with the Margin Regulations.
(e) The mergers among Petroleum, Mesa, Mesa Operating and Parent (the "Mergers") shall have been consummated as contemplated by and pursuant to that certain Amended and Restated Agreement and Plan of Merger dated April 6, 1997 (Athe "Merger Agreement"), among such parties, and Administrative Agent shall have received (i) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability satisfactory evidence of the consummation of such Mergers and (ii) a certificate from a Designated Officer of Borrower certifying that the Mergers have been consummated.
(f) A certificate of a Designated Officer of Borrower certifying that (i) all representations and warranties made by any Obligor in this Agreement or any other Loan Party Document are true and correct as of the Effective Date and (ii) that all conditions precedent to fulfill its obligations under the initial Advance contained in this Agreement or any other Loan Documents to which it is a party;Document have been satisfied as of the Effective Date.
(dg) the Borrower, the other Loan Parties All requisite Governmental Authorities and the other Subsidiaries third parties shall have received approved or consented to the Mergers and all approvalsrelated transactions, consents and waiversincluding, 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Actissuance, closing and funding of this Agreement and the facilities thereunder, to the extent required. All applicable appeal periods shall have expired and there shall be, in the judgment of the Managing Agents, in their sole discretion, no governmental or judicial action, actual or threatened, restraining, preventing or imposing burdensome conditions on the Mergers and all related transactions, including, without limitation, the issuance, closing and funding of this Agreement and the facilities thereunder.
(h) Administrative Agent shall have received documentation of the release of all Liens associated with the Existing Mesa Facility and the Existing Petroleum Facility, in form and substance acceptable to the Administrative Agent, in its sole discretion.
(i) Managing Agents shall have received copies of all financial statements, reports, notices and proxy statements sent by Parent to its stockholders and all SEC filings concerning the Mergers.
(j) No litigation or administrative proceeding or other legal or regulatory developments prohibiting or enjoining the consummation of the Mergers shall exist.
(k) Exclusive of the Mergers, no "Event of Default" (as defined in the Existing Petroleum Credit Facility) for Petroleum or "Event of Default" (as defined in the Existing Mesa Credit Facility) for Mesa shall have occurred and be continuing.
Appears in 1 contract
Sources: Credit Facility Agreement (Pioneer Natural Resources Co)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes (or replacement Notes, as the case may be) executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower);
(iii) The Subsidiary Guaranty executed by the applicable parties thereto;
(iv) an opinion of outside counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to covering such matters as 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 Agent may request;
(iv) (A) the percentage copies 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%);
(v) 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) or (B) a certification by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party that such documents have not been amended or otherwise modified since the Revolving Credit Agreement Date;
(viv) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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 EffectPerson;
(viivi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver 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;
(viiivii) (A) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A1) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B2) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a partyparty or (B) with respect to the items in clause (A)(1) above, a certification by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party that such documents have not been amended or otherwise modified since the Revolving Credit Agreement Date;
(viii) a closing certificate substantially in form of Exhibit U, executed on behalf of the Borrower by an authorized officer of the Borrower;
(ix) 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 effective as of the Agreement Date;
(xiix) the Fee Lettera pro forma Compliance Certificate prepared as of September 30, 2023;
(xiiixi) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent Agent, the Joint Lead Arrangers and any of the Lenders, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xixxii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.;
(bi) the Merger shall be consummated substantially concurrently with the Refinancing on the Effective Date in accordance in all material respects with the Merger Agreement and (ii) any portion of the Existing Term Loan that is not repaid or assumed as part of the Refinancing shall have been repaid in full;
(c) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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 by or on behalf of the Borrower prior to the Agreement Date in connection with the transactions contemplated by this Agreement that has had or could reasonably be expected to result in a Material Adverse Effect;
(cd) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which is reasonably likely to be adversely determined, and, if adversely determined, could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(de) the Borrower, Borrower and 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and, 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 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;
(ef) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender at least 2 Business Days prior to the Agreement Date in order to comply with applicable “know your customer” and antiAnti-money laundering rules and regulationsMoney Laundering Laws, including without limitation, the Patriot Act; and
(g) the Borrower and each other Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case, at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding other than any Lender that has requested that it not receive Notesa Note) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower2.8.(a);
(iii) The Subsidiary the Guaranty executed by each of the applicable parties Guarantors initially to be a party thereto;
(iv) an opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, and opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders and covering the matters set forth 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%)Exhibit H;
(v) 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, authorized to execute and deliver on behalf of the Borrower Notices the Notice of Borrowing, Notices of Swingline Borrowing and requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Compliance Certificate calculated as of the Cutoff Date;
(x) a Compliance Certificate calculated Effective Date on a pro forma basis for the Borrower’s fiscal quarter ending March 31ended September 30, 20192010;
(x) the Notice of Borrowing from the Borrower for the Loans indicating how the proceeds thereof are to be made available to the Borrower, and if any of the Loans initially are to be LIBOR Loans, the Interest Period therefor;
(xi) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.; and
(b) In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the Borrower, the other Loan Parties Borrower and the other 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which could 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;
(eiv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender may request in order to comply with applicable “know your customer” the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)); and
(v) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and anti-money laundering rules and regulations, including without limitation, adversely affect the Patriot Acttransactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence proceeds of the first Credit Event hereunder, whether as Term Loans available to the making of a Loan or the issuance of a Letter of Credit, Borrower 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 The Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms applicable provisions of Section 2.12(a) and the Swingline Note executed by the Borrower2.8.;
(iii) The Subsidiary Guaranty executed by the applicable parties theretoParent and each other Guarantor existing as of the Effective Date;
(iv) an An opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders Lenders, addressing the matters set forth 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%)Exhibit F;
(v) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party;
(vi) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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 the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each 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, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing and requests for Letters of Credit, Notices of Conversion Continuation and Notices of ContinuationConversion;
(viii) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) 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 effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence Evidence that the Fees, if any, Fees then due and payable under Section 3.53.6., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative AgentEffective Date, have been paid;
(xivx) with respect to each Borrowing Base Property identified on Schedule 4.1If requested by the Agent, executed copies of each of the items referred to in Section 6.3 required to be material agreements, documents and instruments delivered in connection with any Borrowing Base Propertythe Acquisition, each certified to the Agent as being true, complete and correct copies by the chief executive officer or the chief financial officer of the Parent;
(xvxi) UCC, tax, judgment and lien search reports with respect A request from the Borrower for the Term Loans indicating how the proceeds thereof are to be made available to the Borrower Borrower, and each other Loan Party in if all jurisdictions reasonably requested by or any portion of the Administrative Agent indicating that there Term Loans initially are no liens of record on such property other than Permitted Liensto be LIBOR Loans, the amounts and the Interest Periods thereof;
(xvi) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviiixii) A certificate Compliance Certificate calculated as of September 30, 2006 (giving pro forma effect to the Borrower certifying that the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence theretoAcquisition); and
(xixxiii) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request.; and
(b) there shall not have occurred or become known to In the Administrative Agent or any good faith judgment 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 Lenders:
(i) no material provision or condition (including conditions relating to the accuracy of the representations and warranties set forth therein) of the Merger Agreement Date that has had shall have been waived, amended, supplemented or could reasonably be expected to result otherwise modified in a Material Adverse Effectmanner that is material and adverse to the Agent or the Lenders;
(ii) all conditions precedent to the closing of the Acquisition (other than (x) the payment of the aggregate Merger Consideration (as defined in the Merger Agreement) by the Parent, or (y) the filing of the Articles of Merger of Reckson and Wyoming Acquisition Corp. in Maryland and the filing of the Certificate of Merger of Reckson OP and Wyoming Acquisition Partnership LP in Delaware) shall have been satisfied or waived; and
(iii) the Agent shall have been provided with a certificate from the Parent’s chief executive officer or chief financial officer certifying the matters referred to in the immediately preceding clauses (i) and (ii); and
(c) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) the Borrower, the other Loan Parties and the other Subsidiaries The Acquisition shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices been consummated prior to the Termination Date (as shall be required to consummate defined in the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot ActMerger Agreement).
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, initial Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding other than any Lender that has requested that it not receive Notesa Note) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower2.11.(a);
(iii) The Subsidiary the Guaranty executed by each Guarantor existing as of the applicable parties theretoEffective Date;
(iv) an opinion of King & Spalding LLP, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders and covering the matters set forth 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%)Exhibit H;
(v) a certificate of incumbency signed by the Secretary or Assistant Secretary of GP Sub with respect to each of the officers of GP Sub authorized to execute and deliver on behalf of the Borrower the Loan Documents to which the Borrower is a party and the officers of the GP Sub then authorized to deliver, on behalf of the Borrower, Notices of Borrowing, Notices of Continuation and Notices of Conversion;
(vi) copies, certified by the Secretary or Assistant Secretary of GP Sub, of (i) the partnership agreement of the Borrower and (ii) all corporate (or comparable) action taken by GP Sub to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(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;
(viviii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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 EffectParty;
(viiix) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the BorrowerBorrower (unless otherwise delivered pursuant to clause (v) above), authorized to execute and deliver 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;
(viiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) 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 effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been paid;
(xii) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ended September 30, 2011;
(xiii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiv) with respect to each the Notice of Borrowing Base Property identified on Schedule 4.1, each of from the items referred to Borrower requesting the initial Loan in Section 6.3 required to be delivered in connection with any Borrowing Base Propertyan amount not less than $100,000,000;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.; and
(b) In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred since December 31, 2010, any circumstance 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 condition that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the Borrower, the other Loan Parties Borrower and the other 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, conflict with or violation of (A) any Applicable Law or (B) 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 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
(eiv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and antithe USA Patriot Act (Title III of Pub. L. 107-money laundering rules and regulations56 (signed into law October 26, including without limitation, the Patriot Act2001)).
Appears in 1 contract
Initial Conditions Precedent. The obligation of following are the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedentInitial Conditions Precedent:
(a) The Administrative Agent shall have received each copies of a resolution of the followingMain SPV's, the Shareholder's and each Greif Transaction Party's board of directors (except for the German Originators), and any other necessary corporate documents, approving the Transaction Documents to which it will become a party and the other documents to be delivered by it and the transactions contemplated hereunder;
(b) a director's certificate of each Originator certifying as to such Originator's solvency;
(c) copies of the constitutive documents of the Main SPV, the Shareholder and each Greif Transaction Party;
(d) a certificate of the Main SPV, the Shareholder and each Greif Transaction Party certifying:
(i) the names and signatures of the officers authorised on behalf of such party to execute the Transaction Documents to which it will become a party and any other documents to be delivered by it hereunder, on which certificate the Main SPV and the Funding Administrator may conclusively rely until such time as the Main SPV and the Funding Administrator shall receive from such party a revised certificate meeting the requirements of this paragraph; and
(ii) the authenticity of the constitutive documents of such party.
(e) legal opinions from:
(i) legal counsel in the relevant jurisdictions to the Greif Transaction Parties in form and substance satisfactory to the Administrative Agent:Main SPV and the Funding Administrator regarding (i) due execution by, and corporate authority of each Greif Transaction Party, (ii) the validity and enforceability of the obligations of the Greif Transactions Parties under and in connection with the Transaction Documents to which they are expressed to be a party and (iii) the perfection of the sale and transfer of the Receivables Purchase Agreements (other than the Nieuw Amsterdam Receivables Purchase Agreement) and such other matters concerning such Greif Transaction Party as the Main SPV and/or the Funding Administrator may require; and
(ii) legal counsel in the relevant jurisdictions to the Funding Administrator regarding (i) the due execution and corporate authority of Main SPV, (ii) the validity and enforceability of the obligations of Main SPV under and in connection with the relevant Transaction Documents to which Main SPV is expressed to be a party, (iii) the enforceability of the Main SPV Security Documents, and (iv) the sale of the Receivables;
(f) a copy of the Servicing Agreement as executed;
(g) a copy of the Nieuw Amsterdam Receivables Purchase Agreement (which has been, for the avoidance of doubt, been replaced by the Nieuw Amsterdam Receivables Funding Agreement) as executed;
(h) a copy of the Receivables Purchase Agreements as executed;
(i) counterparts a copy of this the Subordinated Loan Agreement executed by as executed;
(j) a copy of the Administration Agreement as executed;
(k) a copy of each Management Agreement as executed;
(l) a copy of each Security Agreement as executed;
(m) a copy of the Master Definitions Agreement as executed;
(n) a copy of the Performance and Indemnity Agreement as executed;
(o) a copy of the Liquidity Facility Agreement as executed;
(p) evidence satisfactory to the Facility Agent that the Transaction Security has been or will be perfected in accordance with all applicable laws, including but not limited to any notice required to be provided under any Collection Account Pledge Agreement;
(q) evidence satisfactory to the Facility Agent that any required UCC filing has been completed;
(r) confirmation from each of the parties hereto;
(ii) Revolving Notes executed by Rating Agencies that upon execution of the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower;
(iii) The Subsidiary Guaranty executed by the applicable parties thereto;
(iv) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may 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 YorkNieuw Amsterdam Receivables Purchase Agreement, 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%);
(v) 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, authorized to execute and deliver 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;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) 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 effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, Commercial Paper will maintain their then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower certifying that the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence theretocurrent rating; and
(xixs) such other documents, agreements and instruments as the 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 a copy of the Lenders any eventFunding Cost Fee Letter as executed and evidence that the fees, condition, situation or status since costs and expenses then due from 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 (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) the Borrower, the other Loan Greif Transaction Parties and the other Subsidiaries shall pursuant thereto 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Actbeen paid.
Appears in 1 contract
Sources: Amendment Agreement (Greif, Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the 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 Notes) and complying with the terms of Section 2.12(a) Notes and the Swingline Note executed by the BorrowerBorrower payable to the Swingline Lender to the extent that it has requested that it receive Notes, and, in each case, complying with the terms of Section 2.12.(a);
(iii) The Subsidiary the Guaranty executed by each Subsidiary Guarantor, the applicable Parent and each other Required Guarantor;
(iv) (i) the Pledge Agreement, executed by each of the Parent, General Partner, ▇▇▇▇▇▇▇▇ and each Subsidiary Guarantor party thereto from time to time and (ii) each other Security Document, executed by the parties thereto;
(ivv) an opinion letter of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may request, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory acceptable 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%);
(vvi) 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;
(vivii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such 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;
(viiviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viiiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a LEGAL 4867-4266-3982v.3 corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ixx) a Borrowing Base Certificate calculated original stock certificates or other certificates evidencing the certificated Equity Interests, as of applicable, pledged pursuant to the Cutoff DateSecurity Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;
(xxi) evidence of property, business interruption and liability insurance covering each Eligible Property, evidence of payment of all insurance premiums for the current policy year of each policy (with appropriate endorsements naming the Administrative Agent as lender’s loss payee on all policies for property hazard insurance and as additional insured on all policies for liability insurance), in each case, in form and substance reasonably acceptable to the Administrative Agent, and if requested by the Administrative Agent, copies of such insurance policies;
(xii) any other documents reasonably requested thereby or as required by the terms of the Security Documents to perfect or evidence its security interest in the Collateral;
(xiii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 6.1.(b) through (e) and Section 6.2 have been satisfied;
(xiv) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31September 30, 2019;
(xixv) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiixvi) evidence that all indebtedness, liabilities or obligations owing by the Fee LetterLoan Parties under the Existing Credit Facilities shall have been paid in full and all Liens securing such indebtedness, liabilities or other obligations have been released;
(xiiixvii) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate copies of all Specified Derivatives Contracts in existence on the Borrower certifying that the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence theretoAgreement Date; and
(xix) such other documents, agreements and instruments as the 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 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 (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) 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, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(e) the offering of the Equity Interests of the Parent, pursuant to an offering memorandum substantially similar to the draft thereof previously provided to the Administrative Agent and the Lenders, prior to the date hereof (the “Equity Offering”), shall have been completed on terms and conditions acceptable to the Administrative Agent, including, without limitation, the Parent’s receipt of gross cash proceeds of the Equity Offering in an aggregate amount not less than $175 million, and the capital structure and corporate structure of the Parent and its Subsidiaries shall be acceptable to the Administrative Agent;
(f) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and antiAnti-money laundering rules and regulationsMoney Laundering Laws, including without limitation, the Patriot Act; and
(g) each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: Credit Agreement (NETSTREIT Corp.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, 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 executed by the Borrower, payable to each applicable Lender (but excluding other than any Lender that has requested that it not receive Notesa Revolving Note) and complying with the terms of Section 2.12(a2.10.(a) and the Swingline Note executed by the Borrower;
(iii) The Subsidiary the Guaranty executed by each of the applicable parties Guarantors initially to be a party thereto;
(iv) an opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, and an opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to covering such matters as 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%)Agent may reasonably request;
(v) 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, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Compliance Certificate calculated as of the Cutoff Date;
(x) a Compliance Certificate calculated Effective Date on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 20192011;
(xix) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiixi) evidence that all indebtedness, liabilities or obligations owing by the Fee LetterLoan Parties under the Existing Credit Agreement shall have been paid in full;
(xiiixii) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xixxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.; and
(b) In the good faith judgment of the Administrative Agent:
(i) there 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;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the Borrower, the other Loan Parties Borrower and the other 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which could 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;
(eiv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)); and
(v) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and anti-money laundering rules and regulations, including without limitation, adversely affect the Patriot Acttransactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding other than any Lender that has requested that it not receive Notesa Revolving Note) and complying with the terms of Section 2.12(a2.10.
(a) and the Swingline Note executed by the Borrower;
(iii) The Subsidiary the Guaranty executed by the applicable parties Parent and each of the other Guarantors initially to be a party thereto;
(iv) an opinion of legal counsel to the Borrower and such the other Loan Parties as Parties, reasonably satisfactory to the Administrative Agent may requestAgent, addressed to the Administrative Agent and the Lenders and covering the matters set forth 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%)Exhibit H;
(v) 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, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as of the Cutoff Date;
(x) a Compliance Certificate calculated on a pro forma basis for the BorrowerParent’s fiscal quarter ending March December 31, 20192011;
(xix) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(xii) the Fee Letter;
(xiiixi) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xivxii) with respect to each Borrowing Base Property identified on Schedule 4.1, each of the items referred to in Section 6.3 if 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) Agent, insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 7.5. (including, without limitation, both property and liability insurance) is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xixxiii) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through Agent may reasonably request; and
(b) In the good faith judgment of the Administrative Agent, may reasonably request.:
(bi) 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 Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect Effect, other than as previously disclosed to Administrative Agent and the Lenders in writing and approved by the Administrative Agent and Lenders in writing, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the BorrowerParent, the other Loan Parties Borrower and the other their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; andbound except for such approvals, consents, waivers, filings and notices the receipt, making or giving of 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 Parent, the Borrower or any other Loan Party to fulfill their respective obligations under the Loan Documents to which it is a party;
(eiv) the Parent, the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(v) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes A Note executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) a Note, and complying with the terms of of, Section 2.12(a) and the Swingline Note executed by the Borrower2.11.(a);
(iii) The Subsidiary the Guaranty executed by the applicable parties theretoParent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1.;
(iv) an opinion of ▇▇▇▇▇ Lovells LLP, counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders and in a form and substance reasonably 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%);
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument document (if any) of each Loan Party certified as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of such Loan PartyParty (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the “Original Credit Agreement” (as defined in the Revolving Credit Agreement) has not been modified or amended and remains in full force and effect, a certificate of the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be delivered in lieu of delivery of a current certified copy of such document);
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such 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, authorized to execute and deliver 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;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity (except that, if any such document delivered to Administrative Agent pursuant to the “Original Credit Agreement” (as defined in the Revolving Credit Agreement) has not been modified or amended and remains in full force and effect, a certificate so stating may be delivered in lieu of delivery of another copy of such document) and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as evidence of the Cutoff Dateinsurance required under Section 8.5.;
(x) a Compliance Certificate calculated on a pro forma basis certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Borrower’s fiscal quarter ending March 31, 2019Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate calculated as of September 30, 2012;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been 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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the Borrower, Borrower and 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, conflict with or violation of (A) any Applicable Law or (B) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(eiv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower;
(iii) The Subsidiary Guaranty executed by the applicable parties thereto;
(iv) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may 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, California, 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 five percent (45%);
(v) 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, authorized to execute and deliver 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;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) 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, 20192021;
(xi) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paidpaid or will be paid from Loans to occur on the date hereof;
(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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xix) such other documents, agreements and instruments as the 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 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 (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act, in each case to the extent requested in writing at least five (5) Business Days prior to the Agreement Date.
Appears in 1 contract
Sources: Credit Agreement (LGI Homes, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes, Tranche B Term Notes and Bid Rate Notes executed by the Borrower, payable to each applicable Lender (but excluding including any Designated Lender, if applicable, and to the extent such Lender that has requested that it not required to receive Notes) and complying with the terms of Section 2.12(a2.12.
(a) and the Swingline Note Notes executed by the Borrower;
(iii) The Subsidiary Guaranty executed by the applicable parties thereto[reserved];
(iv) an opinion of counsel to the Borrower and such the other Loan Parties as the Administrative Agent may requestParties, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to covering such matters as the Administrative AgentAgent may reasonably request; 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%);LEGAL02/40926073v6
(v) 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, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing and Borrowing, requests for Letters of Credit, Notices of Conversion and Conversion, Notices of ContinuationContinuation and Bid Rate Quote Requests;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as of the Cutoff Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s four (4) quarter fiscal quarter period ending March 31June 30, 20192021;
(xix) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiixi) the Fee Letter[reserved];
(xiiixii) evidence that the Fees, if any, then due and payable under Section 3.5., together with with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the reasonable and documented out-of-pocket fees and expenses of counsel to the Administrative Agent, have been 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 other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Borrower and such other Persons as the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower 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
(xixxiii) such other documents, agreements and instruments as the 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 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 in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) 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 LEGAL02/40926073v6 under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Sources: Credit Agreement (Elme Communities)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the BorrowerBorrowers, payable to each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12(a) and the Swingline Note executed by the Borrower);
(iii) The Subsidiary the Guaranty executed by the applicable parties Guarantor initially to be a party thereto;
(iv) an opinion of counsel to the Borrower Borrowers and such other Loan Parties as the Administrative Agent may 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%);
(v) 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 BorrowerBorrowers, authorized to execute and deliver on behalf of the Borrower Borrowers Notices of Borrowing, Notices of Swingline Borrowing and requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Borrowing Base Certificate calculated as of the Cutoff Agreement Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s Borrowers’ fiscal quarter ending March 31, 20192012;
(xi) with respect to each Property identified on Schedule 4.1, each of the items referred to in Section 6.3 required to be delivered in connection with any Borrowing Base Property;
(xii) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiixiii) UCC, tax, judgment and lien search reports with respect to the Borrowers (or a Subsidiary if any Borrowing Base Property is owned by a Subsidiary) and each Borrowing Base Property in all necessary or appropriate jurisdictions indicating that there are no Liens of record on such Property other than Permitted Liens;
(xiv) copies of all Material Contracts and Specified Derivatives Contracts in existence on the Agreement Date;
(xv) copies of the form of Tenant Lease (if any) to be used for each Borrowing Base Property from the Agreement Date until the Maturity Date and each Tenant Lease entered into as of the Agreement Date with respect to such Property;
(xvi) the Fee Letter;
(xiiixvii) evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(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;
(xvixviii) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 (including, without limitation, both property and liability insurance) is in full force and effect;
effect and stating that the coverage shall not be cancelable or materially changed without ten (xvii10) Beneficial Ownership Certifications from the Borrower and such other Persons as days prior written notice to the Administrative Agent of any cancellation for nonpayment or premiums, and Lenders shall reasonably require;
not less than thirty (xviii30) A certificate days prior written notice to the Administrative Agent of any other cancellation or any modification (including a reduction in coverage), together with appropriate evidence that the Administrative Agent, for its benefit and the benefit of the Borrower certifying Lenders, the Issuing Bank, and the Specified Derivatives Providers is named as a lender’s loss payee and additional insured, as appropriate, on all insurance policies that the Loans are permitted under Borrowers, any Senior Notes Indebtedness and/or Loan Party or any Senior Notes Indenture relating thereto together other Subsidiary actually maintains with supporting evidence theretorespect to any Property and improvements on such Property; and
(xix) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request.; and
(b) In the good faith judgment of the Administrative Agent:
(i) there 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 Borrowers and its their Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or or, to Borrower’s knowledge, threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower Borrowers or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) the Borrower, Borrowers and 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, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound; and;
(eiv) the Borrower Borrowers and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001));
(v) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and anti-money laundering rules adversely affect the transactions contemplated by the Loan Documents; and
(vi) the Parent, Borrowers and regulations, including without limitation, their Subsidiaries and Affiliates shall have permanently reduced any and all commitments available under the Patriot Act▇▇▇▇▇ Fargo Repurchase Line of Credit to an aggregate amount not to exceed $12,000,000.
Appears in 1 contract
Sources: Credit Agreement (CapLease, Inc.)