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 Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, Section 2.11(a) and a Term Loan Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a); (iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1; (iv) an opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent; (v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a 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 (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 of the Borrower and the Parent Guarantor issued as of a date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which 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, 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) evidence of the insurance required under Section 8.5; (x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement; (xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019; (xii) a Disbursement Instruction Agreement effective as of the Agreement Date; (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, 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 fees and expenses of counsel to the Administrative Agent, have been paid; (i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and (xv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and (b) In the good faith and reasonable judgment of the Administrative Agent: (i) there 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; (ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; (iii) the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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 (iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 2 contracts
Sources: Credit Agreement (RLJ Lodging Trust), Credit Agreement (RLJ Lodging Trust)
Initial Conditions Precedent. The obligation of the Lenders Lender to effect or permit the occurrence of the first Credit Event Extension 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 Lender’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, and of duly authorized officers of any other parties thereto, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative AgentLender:
(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 Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, Section 2.11(a) and a Term Loan Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent each Guarantor and by each existing as of the Subsidiary Guarantors identified in Schedule 1.1Closing Date;
(iv) an opinion each of Hthe Security Instruments executed by each Loan Party existing as of the Closing Date;
(v) favorable opinions of ▇▇▇▇▇▇▇ Lovells Long & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent Lender, as to the matters set forth in Exhibit C and such other matters concerning the Loan Parties and the Lenders and in form and substance Loan Documents as the Lender may reasonably satisfactory to the Administrative Agentrequest;
(vvi) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership or other comparable organizational document instrument (if any) of the Borrower and each other 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 (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)Party;
(vivii) a certificate of good standing (or certificate of similar meaning) meaning with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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 certificate of incumbency signed by 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 Loan Notices and to request the issuance of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viiiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (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 (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 (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;
(ixx) evidence The results of a recent UCC, tax, judgment and lien search in each of the insurance required jurisdictions to which UCC financing statements or other filings or recordations should be made to evidence or perfect security interests in Collateral being granted under Section 8.5;
(x) a certificate the Security Instruments as of the Borrower Closing Date, and such search shall reveal no Liens of record with respect to any such Collateral other than Liens to be terminated prior to the Parent Guarantor certifying that Closing Date or other Liens Acceptable to the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this AgreementLender;
(xi) a Compliance Certificate dated as Each document (including, without limitation, any UCC financing statement) required by the Security Instrument or under applicable Laws or reasonably deemed necessary or appropriate by the Lender to be filed, registered or recorded in order to create in favor of the Agreement Date Lender a perfected first-priority Lien on the Collateral described thereon, shall have been filed, registered or recorded or shall have been delivered to the Lender and calculated as of September 30be in proper form for filing, 2019registration or recordation;
(xii) All certificates, if any, representing any shares of Pledged Equity Interests pledged pursuant to the Pledge Agreement, together with an undated transfer power for each such certificate executed in blank by a Disbursement Instruction Agreement effective as duly authorized officer or agent of the Agreement DateLoan Party with rights in such Pledged Equity Interest;
(xiii) evidence that A certificate or certificates of insurance of the Fees (including, Loan Parties evidencing liability and casualty insurance meeting the requirements set forth in the Loan Documents and in form and substance reasonably acceptable 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, 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 LendersLender, including, without limitation, naming the reasonable Lender as additional insured and documented lenders loss payee;
(A) All agreements, documents and instruments evidencing, or executed in connection with, the Subordinated Indebtedness, (B) the Lender’s satisfaction with the terms thereof, (C) any Subordination Agreements with respect thereto;
(xv) Evidence satisfactory to the Lender that each of the Borrower and each Subsidiary shall have been released from all liabilities and obligations in respect of Indebtedness (other than the Obligations and other than liabilities and obligations expressly permitted under Section 8.03), including, without limitation, a pay-off letter, UCC termination statements and other releases duly executed by any holder of such Indebtedness to be released, each in form and substance satisfactory to the Lender.
(xvi) 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 shall exist;
(xvii) a 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 Closing Date), a duly completed Loan Notice and funds disbursement Instructions;
(xviii) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under applicable Laws, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding this Agreement or any transaction being financed with the proceeds thereof shall be ongoing; and
(xix) such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) The Borrower shall have paid all fees, charges and expenses disbursements of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) Lender to the extent invoiced prior to or on the Borrower qualifies Closing Date, plus such additional amounts of such fees, charges and disbursements as a “legal entity customer” under the Beneficial Ownership Regulationshall constitute its reasonable estimate of such fees, a Beneficial Ownership Certification in relation charges and disbursements incurred or to the Borrower; and
(xv) such other documents and instruments as the Administrative Agent, or any Lender be incurred by it through the Administrative Agent, may reasonably request; and
closing proceedings (b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there provided that such estimate shall not have occurred or become known to the Administrative Agent or any thereafter preclude a final settling 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) accounts between the Borrower and the other Loan Parties shall have received all approvalsLender), consents and waiverswhich fees, and shall have made but not any charges or given all necessary filings and notices as disbursements, shall be required limited 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
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act$50,000.
Appears in 2 contracts
Sources: Credit Agreement (TRX Inc/Ga), Credit Agreement (TRX Inc/Ga)
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) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Notes and Term Notes executed by the Borrower, payable to each Revolving Credit Lender that has requested a Revolving Credit Noteall Lenders, and complying with the terms of, of Section 2.11(a) and 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)2.9.;
(iii) the Guaranty executed by the Parent Guarantor and by each any other Person that would be required under Section 8.13. to become a party to the Guaranty as of the Subsidiary Guarantors identified in Schedule 1.1Effective Date;
(iv) (A) an opinion of H▇▇▇▇▇ Lovells & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Borrower and the other Loan Parties, Agent addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative AgentLenders;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Person;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person 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 a Loan Party such 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, 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 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 (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 Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) evidence an Unencumbered Pool Certificate calculated as of the insurance required under Section 8.5Effective Date;
(x) a certificate of Compliance Certificate calculated on a pro forma basis for 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 AgreementBorrower’s fiscal quarter ending December 31, 2007;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixii) evidence satisfactory to the Agent 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 3.53.6., together with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xvxiii) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsDecember 31, budgets2007, 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;
(ii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There 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 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 and Term Notes executed by the Borrower, payable to each Revolving Credit applicable Lender that has requested a Revolving Credit Notethat it receive Notes and the Swingline Note executed by the Borrower payable to the Swingline Lender to the extent that it has requested that it receive Notes, and and, in each case, complying with the terms of, of Section 2.11(a) and 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(a2.12.(a);
(iii) the Guaranty executed by each Subsidiary Guarantor, the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1other Required Guarantor;
(iv) (i) the Pledge Agreement, executed by each of the Parent, General Partner, Borrower and each Subsidiary Guarantor party thereto from time to time and (ii) each other Security Document, executed by the parties thereto;
(v) an opinion letter of HWinston & ▇▇▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, Parties addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory acceptable to the Administrative Agent;
(vvi) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vivii) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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 (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) evidence of the insurance required under Section 8.5;
(x) a original stock certificates or other certificates evidencing the certificated Equity Interests, as applicable, pledged pursuant to the Security Documents, together with an undated stock power for each such certificate of duly executed in blank by 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 Agreementregistered owner thereof;
(xi) evidence of property, business interruption and liability insurance covering each Eligible Property, evidence of payment of all insurance premiums for the current policy year of each policy (with appropriate endorsements naming the Administrative Agent as lender’s loss payee on all policies for property hazard insurance and as additional insured on all policies for liability insurance), in each case, in form and substance reasonably acceptable to the Administrative Agent, and if requested by the Administrative Agent, copies of such insurance policies;
(xii) any other documents reasonably requested thereby or as required by the terms of the Security Documents to perfect or evidence its security interest in the Collateral;
(xiii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 6.1.(b) through (e) and Section 6.2 have been satisfied;
(xiv) a Compliance Certificate dated as of calculated on a pro forma basis for the Agreement Date and calculated as of Borrower’s fiscal quarter ending September 30, 2019;
(xiixv) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixvi) evidence that all indebtedness, liabilities or obligations owing by the Loan Parties under the Existing Credit Facilities shall have been paid in full and all Liens securing such indebtedness, liabilities or other obligations have been released;
(xvii) evidence that the Fees (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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixviii) copies of all documentation and other information regarding Specified Derivatives Contracts in existence on the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the BorrowerAgreement Date; and
(xvxix) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith and reasonable judgment of the Administrative Agent:
(ixx) 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;
(iixxi) 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;
(iiixxii) the Borrower and 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 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, 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;
(ivxxiii) the offering of the Equity Interests of the Parent, pursuant to an offering memorandum substantially similar to the draft thereof previously provided to the Administrative Agent and the Lenders, prior to the date hereof (the “Equity Offering”), shall have been completed on terms and conditions acceptable to the Administrative Agent, including, without limitation, the Parent’s receipt of gross cash proceeds of the Equity Offering in an aggregate amount not less than $175 million, and the capital structure and corporate structure of the Parent and its Subsidiaries shall be acceptable to the Administrative Agent;
(xxiv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and antiAnti-money laundering rules and regulationsMoney Laundering Laws, including without limitation, the Patriot Act; and
(xxv) 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 2 contracts
Sources: Credit Agreement (NetSTREIT Corp.), Credit Agreement (NetSTREIT Corp.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Notes and Term Notes executed by the Borrower, payable to each Revolving Credit applicable Lender that has requested a Revolving Credit Notethat it receive Notes and the Swingline Note executed by the Borrower payable to the Swingline Lender to the extent that it has requested that it receive Notes, and and, in each case, complying with the terms of, of Section 2.11(a) and 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(a2.12.(a);
(iii) the Guaranty executed by each Subsidiary Guarantor, the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1other Required Guarantor;
(iv) (i) the Pledge Agreement, executed by each of the Parent, General Partner, Borrower and each Subsidiary Guarantor party thereto from time to time and (ii) each other Security Document, executed by the parties thereto;
(v) an opinion letter of HWinston & ▇▇▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, Parties addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory acceptable to the Administrative Agent;
(vvi) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vivii) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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 (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) evidence of the insurance required under Section 8.5;
(x) a original stock certificates or other certificates evidencing the certificated Equity Interests, as applicable, pledged pursuant to the Security Documents, together with an undated stock power for each such certificate of duly executed in blank by 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 Agreementregistered owner thereof;
(xi) evidence of property, business interruption and liability insurance covering each Eligible Property, evidence of payment of all insurance premiums for the current policy year of each policy (with appropriate endorsements naming the Administrative Agent as lender’s loss payee on all policies for property hazard insurance and as additional insured on all policies for liability insurance), in each case, in form and substance reasonably acceptable to the Administrative Agent, and if requested by the Administrative Agent, copies of such insurance policies;
(xii) any other documents reasonably requested thereby or as required by the terms of the Security Documents to perfect or evidence its security interest in the Collateral;
(xiii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 6.1.(b) through (e) and Section 6.2 have been satisfied;
(xiv) a Compliance Certificate dated as of calculated on a pro forma basis for the Agreement Date and calculated as of Borrower’s fiscal quarter ending September 30, 2019;
(xiixv) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixvi) evidence that all indebtedness, liabilities or obligations owing by the Loan Parties under the Existing Credit Facilities shall have been paid in full and all Liens securing such indebtedness, liabilities or other obligations have been released;
(xvii) evidence that the Fees (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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixviii) copies of all documentation and other information regarding Specified Derivatives Contracts in existence on the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the BorrowerAgreement Date; and
(xvxix) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(iic) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) the Borrower and 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 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, 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;
(ive) 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 2 contracts
Sources: Credit Agreement (NETSTREIT Corp.), Credit Agreement (NETSTREIT Corp.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) 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 and the Florida Borrower, payable to each Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms ofapplicable provisions of Section 2.11., Section 2.11(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by Holdings, each Subsidiary that owns or leases a Collateral Property as of the Effective Date and each Material Subsidiary Guarantors identified in Schedule 1.1(other than any Exempt Subsidiary) as of the Effective Date;
(iv) an opinion or opinions of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and Lenders, addressing the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit H;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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 BorrowingBorrowings, requests for Letters Notices of Credit, Continuation and 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 (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 (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) evidence a certificate from a Responsible Officer of the insurance required under Section 8.5Borrower 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 certificate evidence of the Borrower 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 Parent Guarantor certifying that Lenders on or prior to the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this AgreementEffective Date;
(xi) a Compliance Borrowing Base Certificate dated calculated as of the Agreement Date and calculated as of September 30, 2019Effective Date;
(xii) a Disbursement Instruction Agreement effective Compliance Certificate calculated as of June 30, 2006 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xiii) evidence that letters from the Fees (including, to the extent then due, the “Fees” (administrative agent under and as defined in the each Existing Credit AgreementAgreement providing information regarding the payment in full of amounts outstanding under such Existing Credit Agreement and providing for the termination thereof and the release of all Liens securing any obligations owing thereunder;
(xiv) all of the items required to be delivered under Sections 4.1. and interest under 4.2. of the Existing Credit Agreement accrued through the Effective Date), if any, then due and payable under Section 3.5, together with, with respect 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 fees and expenses of counsel to the Administrative Agent, have been paideach Property identified on Schedule 4.1.;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xv) such other documents 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) In the good faith and reasonable judgment of the Administrative AgentAgent and the Lenders:
(i) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(ii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (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;
(iii) Holdings, the Borrower and 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 material 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
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
(c) When all of the conditions contained in the immediately preceding subsections (a) and (b) have been satisfied or waived in accordance with the terms hereof, the Agent shall promptly notify the Borrower and 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 effectiveness of this Agreement and the obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The 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) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Notes and Term Notes executed by the Borrower, payable to each Revolving Credit Lender (other than a Lender that has requested not to receive a Revolving Credit Note or a Term Note, as applicable) and complying with the terms ofapplicable provisions of Section 2.11, Section 2.11(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1[Reserved];
(iv) an opinion Opinions of H▇▇▇▇ Lovells LLP, counsel to NSA REIT and the Loan Parties (limited in scope to NSA REIT, the Borrower and the other Loan Partieseach Subsidiary Guarantor), addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative AgentLenders;
(v) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (if any) of NSA REIT and 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 (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 (except that, if any such document relating to any Subsidiary Guarantor any) have not changed from those previously delivered to Administrative Agent pursuant to the administrative agent under 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)Agreement;
(vi) a A certificate of good standing (or certificate of similar meaning) meaning with respect to NSA REIT, the Borrower, each of the Borrower and the Parent Guarantor Subsidiary Guarantor, issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State (or comparable official) of the state of formation of NSA REIT and each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued 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 a 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 BorrowingBorrowings, requests for Letters Notices of Credit, Continuation and 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 (except thatentity, if any such 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 Administrative Agent pursuant to the administrative agent under 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 (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) evidence of the insurance required The Fees then due and payable under Section 8.53.6, and any other Fees payable to the Administrative Agent, the Titled Agents and 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 certificate recent UCC lien search in the jurisdiction of organization of the Borrower, which search results shall reveal no Liens on any of the assets of the Borrower except for Liens permitted by Section 10.6 or discharged on or prior to the Effective Date pursuant to a payoff letter or other documentation reasonably satisfactory to the Administrative Agent;
(xi) [Reserved];
(xii) a payoff letter (reasonably satisfactory to the Administrative Agent) evidencing repayment in full and termination of all loans, commitments and other obligations under the Capital One Term Loan Facility as of the Effective Date, termination of all agreements relating thereto and the Parent Guarantor certifying that release of all Liens granted in connection therewith, if any, with Uniform Commercial Code or other appropriate termination statements and documents effective to evidence the Properties identified foregoing, in Schedule 4.1 satisfy each case subject only to repayment in full;
(xiii) Evidence of amendments to the requirements for inclusion Borrower’s (or any other Loan Party’s) existing senior Unsecured Indebtedness in a form and substance satisfactory to the Unencumbered Pool under Administrative Agent, to reflect conforming changes contemplated by this Agreement;
(xixiv) a A Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 20192022 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date and any other Indebtedness incurred or repaid after September 30, 2022);
(xiixv) A certificate signed by a Disbursement Instruction Agreement effective as of Responsible Officer, certifying that the Agreement Dateconditions set forth in Section 6.1(b) have been satisfied;
(xiiixvi) evidence that the Fees (including, such due diligence with respect to the extent then due, the “Fees” (under and Eligible Unencumbered Properties 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, 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 fees and expenses of counsel to the Administrative Agent, have been paidmay reasonably request;
(ixvii) all All documentation and other information regarding the Borrower requested in connection with required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot USA PATRIOT Act, and a properly completed and signed IRS Form W-8 or W-9 (ii) to October 2018 form), as applicable, and the extent the Borrower qualifies as a “legal entity customer” under the Certification of Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrowerfor each applicable Loan Party; and
(xvxviii) such Such other documents 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) In the good faith and reasonable judgment determination of the Administrative AgentAgent and the Lenders:
(i) there shall not have occurred or become known Both immediately before and immediately after giving effect to the Administrative Agent or any financing contemplated by this Agreement and the use of the Lenders any event, condition, situation or status since the date proceeds of the information contained in Loans to be funded on the financial and business projectionsEffective Date, 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;
(ii) 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 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);
(ii) There shall not have occurred any material adverse change since December 31, 2021, in the business, assets, operations or condition (financial or otherwise) of NSA REIT and any Loan Party, or in the facts and information regarding NSA REIT and any Loan Party provided by or on behalf of NSA REIT and any Loan Party to the Administrative Agent or any Lender;
(iii) After giving effect to the Borrower financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date, there shall not have occurred any event or condition that constitutes an “event of default” (howsoever defined) or that, with the giving of any notice, the passage of time, or both, would be an “event of default” under any of NSA REIT or the Loan Parties’ financial obligations (other Loan Parties than de minimis obligations) in existence on the Effective Date; and
(iv) NSA REIT and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any material default under, material conflict with or material violation of (A1) any Applicable Law or (B2) any material 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
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 2 contracts
Sources: Credit Agreement (National Storage Affiliates Trust), 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 followingfollowing (subject to Section 6.3. in the case of clauses (iv) and (v)), 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 Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms ofapplicable provisions of Section 2.10., Section 2.11(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each Material Subsidiary (other than an Excluded Subsidiary or a Foreign Subsidiary) existing as of the Subsidiary Guarantors identified in Schedule 1.1Effective Date;
(iv) an opinion a copy of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership or other comparable organizational document instrument (if any) of the Borrower and each other Loan Party certified as of a date not earlier than fifteen (15x) days prior to the Effective Date by the Secretary of State of the state of formation of such Loan Party (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant as of a date not more that 6 months prior to the Existing Credit Agreement has not been modified or amended delivery thereof to the Agent and remains in full force and effect, a certificate of (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be delivered in lieu Loan Party as being a true, correct and complete copy thereof as of the date of delivery of a current certified copy of such document)thereof to the Agent;
(viv) a copy of a certificate of good standing (or certificate of similar meaning) meaning with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and copies of 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 a 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, in each case, issued as of a date not more than 6 months prior to the date of delivery thereof to the Agent;
(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 BorrowingBorrowings, requests for Letters Notices of Credit, Continuation and 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 (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 (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, addressing the matters set forth in Exhibit I;
(ix) evidence of the insurance required Fees then due and payable under Section 8.53.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(x) a certificate Compliance Certificate calculated as of the Borrower Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the Parent Guarantor certifying that use of the Properties identified in Schedule 4.1 satisfy proceeds of the requirements for inclusion in Loans to be funded on the Unencumbered Pool under this AgreementAgreement Date);
(xi) a Compliance Certificate dated as evidence that arrangements have been made for the termination and release of the Agreement Date and calculated as of September 30, 2019;
existing Security Documents (xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(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 upon the Existing Credit Agreement accrued through occurrence of the Effective Date), if any, then due and payable under Section 3.5, together 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 fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xvxii) such other documents 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) In the good faith and reasonable judgment of the Administrative AgentAgent 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;
(ii) 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 (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
(iii) the Parent, the Borrower and the its other Loan Parties Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any material 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. The provisions of clauses (iv) through (viii) of the Borrower and each other Loan Party 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 2 contracts
Sources: Credit Agreement (DiamondRock Hospitality Co), Credit Agreement (DiamondRock Hospitality Co)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) 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 Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms ofapplicable provisions of Section 2.10., Section 2.11(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each Subsidiary that owns or leases an Initial Unencumbered Pool Property, if any, as of the Subsidiary Guarantors identified in Schedule 1.1Effective Date;
(iv) an opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership or other comparable organizational document instrument (if any) of the Borrower and each other 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 (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)Party;
(viv) a certificate of good standing (or certificate of similar meaning) meaning with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each the state in which a 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 BorrowingBorrowings, requests for Letters Notices of Credit, Continuation and 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 (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 (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) evidence of the insurance required Fees then due and payable under Section 8.53.6., and any other Fees payable to the Agent and the Lenders on or prior to the Effective Date;
(x) a certificate Compliance Certificate calculated as of the Borrower Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the Parent Guarantor certifying that use of the Properties identified in Schedule 4.1 satisfy proceeds of the requirements for inclusion in Loans to be funded on the Unencumbered Pool under this AgreementAgreement Date);
(xi) a Compliance Borrowing Base Certificate dated calculated as of the Agreement Date and calculated as of September 30, 2019Effective Date;
(xii) evidence that the Borrower’s reimbursement obligations under any letters of credit issued under the Existing Credit Agreement either shall be evidenced by a Disbursement Instruction 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 effective as of the Agreement Datea Lender;
(xiii) a disbursement statement setting forth in reasonable detail the application of the initial Loans being funded on the Effective Date;
(xiv) evidence that the Fees (including, to the extent then due, the “Fees” (under and as defined in the Existing Credit Agreement) and interest any lenders under the Existing Credit Agreement accrued through that are not continuing as Lenders hereunder have agreed to accept repayment of all amounts due them under the Effective Date), if any, then due Existing Credit Agreement and payable under Section 3.5, together with, to terminate their commitments thereunder;
(xv) evidence that releases of any prior mortgages recorded on any of the extent a reasonably detailed invoice has Initial Unencumbered Pool Properties have been delivered to a third-party title insurance company for recordation and that, upon the Borrower prior to the date hereofrecording thereof, all other fees, expenses such and reimbursement amounts due that such Initial Unencumbered Pool Properties are free and payable to the Administrative Agent and clear from any of the Lenders, including, without limitation, the reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrowerliens or encumbrances; and
(xvxvi) such other documents 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) In the good faith and reasonable judgment of the Administrative AgentAgent 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;
(ii) 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 (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
(iii) the Parent, the Borrower and the its other Loan Parties Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any material 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 (ivA) 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) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Notes and Bid Rate Notes executed by the Borrower, payable to each Revolving Credit applicable Lender (including any Designated Lender, if applicable), other than any Lender that has requested that it not receive a Revolving Credit Note, and complying with the terms of, of Section 2.11(a2.11.
(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1initially to be a party thereto;
(iv) an opinion of H▇▇▇▇▇ Lovells & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower Parent and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit O;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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) evidence of a Compliance Certificate calculated on a pro forma basis for the insurance required under Section 8.5Borrower’s fiscal quarter ending September 30, 2020;
(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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixi) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xvxii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(ii) 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 Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower Parent and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby 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, 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, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iv) the Borrower Administrative Agent and each other Loan Party 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) 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 Revolving Credit applicable Lender (but excluding any Lender that has requested a Revolving Credit Note, that it not receive Notes) and complying with the terms of, of Section 2.11(a2.12(a) and a Term Loan the Swingline 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 The Subsidiary Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1applicable parties thereto;
(iv) an opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the such other Loan PartiesParties as the Administrative Agent may request, 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 partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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 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) evidence a Borrowing Base Certificate calculated as of the insurance required under Section 8.5Cutoff Date;
(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 calculated on a pro forma basis for the Agreement Date and calculated as of September 30Borrower’s fiscal quarter ending March 31, 2019;
(xiixi) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixiv) all documentation and other information regarding with respect to each Borrowing Base Property identified on Schedule 4.1, each of the Borrower requested items referred to in Section 6.3 required to be delivered in connection with applicable “know your customer” any Borrowing Base Property;
(xv) UCC, tax, judgment and anti-money laundering rules and regulations, including the Patriot Act, and (ii) lien search reports with respect to the extent 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 qualifies and such other Persons as a “legal entity customer” the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower certifying that the Loans are permitted under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrowerany Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence thereto; and
(xvxix) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and.
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(iic) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) the Borrower and 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 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
(ive) 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 closing and effectiveness of this Agreement and the obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:precedent (as confirmed to the Lenders by Administrative Agent):
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) 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 Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, of Section 2.11(a2.11.
(a) and a Term Loan the Swingline 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) a Guaranty executed by each of the Guarantors initially to be a party thereto, and the Parent Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1Parent;
(iv) an opinion opinions of H▇▇▇▇ Lovells LLP, in-house and outside counsel to of the Parent and the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory acceptable to the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (if any) of each Loan Party (i) the Borrower and the Parent 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 Person and (ii) each other Loan Party (except thatfiled with the Secretary of State of the state of formation of such Person, 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 effecteach case, a certificate of certified by 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)Person;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor and each Loan Party other than Georgia Square Partnership, Georgia Square Associates, Ltd. and Old Hickory Mall Venture issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which 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 EffectPerson;
(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, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party and the Parent of (A) the by-laws of such 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 (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 Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) evidence of a Compliance Certificate calculated on a pro forma basis for the insurance required under Section 8.5Borrower's fiscal quarter ending June 30, 2012;
(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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixi) the Fee Letter;
(xii) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixiii) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5. (including, without limitation, both property and liability insurance) is in full force and effect;
(xiv) evidence that all documentation and Liens securing the indebtedness, liabilities or other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” obligations under the Beneficial Ownership RegulationExisting Credit Agreement have been released; provided, a Beneficial Ownership Certification in relation that provision shall have been made for certain releases and terminations to be filed and fully effective within thirty (30) days after the BorrowerEffective Date;
(xv) the duly executed Officer's Certificate; and
(xvxvi) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and.
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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 Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened 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 or the Parent to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Parent, the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby 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, 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, any other Loan Party or the Parent to fulfill its obligations under the Loan Documents to which it is a party;
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable 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 material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
(c) the Administrative Agent shall have received evidence satisfactory to it that (i) that certain $167,000,000 credit facility dated as of November 30, 2007, by and among Borrower and the Administrative Agent (and other lenders), known as “know your customerStarmount”, shall have been (or shall be concurrently with the effectiveness of this Agreement) repaid in full and terminated and (ii) the “Unsecured Indebtedness” covenant set forth in that certain $228,000,000 credit facility dated as of April 22, 2008, by and anti-money laundering rules among Borrower and regulationsthe Administrative Agent (and other lenders), including without limitationknown as “Westfield”, shall have been amended to allow the Patriot Actmaximum ratio of “Unsecured Indebtedness” to “Gross Asset Value” (each as defined therein) to be increased to 0.15 to 1.00.
Appears in 2 contracts
Sources: Credit Agreement (CBL & Associates Properties Inc), Credit Agreement (CBL & Associates Properties Inc)
Initial Conditions Precedent. The 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) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Notes and Term Notes executed by the Borrower, payable to each Revolving Credit applicable Lender (other than any Lender that has requested that it not receive a Revolving Credit Note, ) and complying with the terms of, of Section 2.11(a2.11.
(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1Guarantors, if any, initially to be a party thereto;
(iv) an opinion of H▇▇▇▇▇▇▇▇ Lovells & Worcester LLP, and an opinion of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to covering such matters as the Administrative AgentAgent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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) evidence a Compliance Certificate calculated as of the insurance required under Section 8.5Effective Date on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2017;
(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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixi) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixii) a copy of all documentation Operating Agreements, all Ancillary Agreements, the Business Management Agreement, the Property Management Agreement, in each case certified as true, correct and other information regarding complete by the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to chief operating officer or chief financial officer of the Borrower; and
(xvxiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(iic) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (Ai) any Applicable Law or (Bii) 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, 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;
(ive) 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 2 contracts
Sources: Credit Agreement (Service Properties Trust), Credit Agreement (Service Properties Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Notes executed by the Borrower, payable to each Revolving Credit applicable Lender (but excluding any Lender that has requested a Revolving Credit Note, that it not receive Notes) and complying with the terms of, of Section 2.11(a2.10.(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1initially to be a party thereto;
(iv) an opinion of H▇▇▇▇ Lovells K&L Gates, LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance covering the matters reasonably satisfactory to requested by the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (if any) of each Loan Party certified as of a date not earlier than fifteen within thirty (1530) days prior to of the Effective Agreement Date by the Secretary of State of the state of formation of such Loan Party (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the Existing Credit Agreement has not been modified or amended and remains in full force and effect, a certificate of the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be delivered in lieu of delivery of a current certified copy of such document)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued within thirty (30) days of the Borrower and the Parent Guarantor issued as of a date not earlier than fifteen (15) days prior to the Effective Agreement Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as within thirty (30) days of a recent date the Agreement Date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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) evidence a Compliance Certificate calculated as of the insurance Parent’s fiscal quarter ended June 30, 2012, giving pro forma effect to the repayment of indebtedness, liabilities and obligations required under Section 8.55.1.(a)(xii) and the occurrence of any Credit Event on the Agreement Date, or if such Compliance Certificate is not delivered on the Agreement Date, the occurrence of any Credit Event on such later date that the Compliance Certificate is delivered;
(x) a 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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixi) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixii) evidence that all documentation and other information regarding indebtedness, liabilities or obligations owing under the Borrower requested Existing Credit Agreement have been paid in connection with applicable “know your customer” and anti-money laundering rules and regulationsfull, including the Patriot Actall Liens securing such indebtedness, liabilities or obligations have been released, and (ii) to the extent the Borrower qualifies as a “legal entity customer” all commitments under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; andsuch Existing Credit Agreement have been terminated;
(xvxiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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, budgets2012, 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and 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 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;
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with 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. The parties hereto acknowledge and agree that the conditions set forth in Section 5.1.(a) shall be required to be satisfied only once (other than with respect to those items required to be satisfied under Section 7.11.).
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit 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 and Term Notes executed by the Borrower, payable to each Revolving Credit applicable Lender that has requested a Revolving Credit Notethat it receive Notes and the Swingline Note executed by the Borrower payable to the Swingline Lender to the extent that it has requested that it receive Notes, and and, in each case, complying with the terms of, of Section 2.11(a) and 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(a2.12.(a);
(iii) the Guaranty executed by each Subsidiary Guarantor, the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1other Required Guarantor;
(iv) an opinion (i) the Pledge Agreement, executed by each of Hthe Parent, General Partner, B▇▇▇▇▇▇▇ Lovells and each Subsidiary Guarantor party thereto from time to time and (ii) each other Security Document, executed by the parties thereto;
(v) an opinion letter of W▇▇▇▇▇▇ & S▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan Parties, Parties addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory acceptable to the Administrative Agent;
(vvi) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vivii) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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 (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) evidence of the insurance required under Section 8.5;
(x) a original stock certificates or other certificates evidencing the certificated Equity Interests, as applicable, pledged pursuant to the Security Documents, together with an undated stock power for each such certificate of duly executed in blank by 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 Agreementregistered owner thereof;
(xi) evidence of property, business interruption and liability insurance covering each Eligible Property, evidence of payment of all insurance premiums for the current policy year of each policy (with appropriate endorsements naming the Administrative Agent as lender’s loss payee on all policies for property hazard insurance and as additional insured on all policies for liability insurance), in each case, in form and substance reasonably acceptable to the Administrative Agent, and if requested by the Administrative Agent, copies of such insurance policies;
(xii) any other documents reasonably requested thereby or as required by the terms of the Security Documents to perfect or evidence its security interest in the Collateral;
(xiii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 6.1.(b) through (e) and Section 6.2 have been satisfied;
(xiv) a Compliance Certificate dated as of calculated on a pro forma basis for the Agreement Date and calculated as of Borrower’s fiscal quarter ending September 30, 2019;
(xiixv) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixvi) evidence that all indebtedness, liabilities or obligations owing by the Loan Parties under the Existing Credit Facilities shall have been paid in full and all Liens securing such indebtedness, liabilities or other obligations have been released;
(xvii) evidence that the Fees (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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixviii) copies of all documentation and other information regarding Specified Derivatives Contracts in existence on the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the BorrowerAgreement Date; and
(xvxix) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(iic) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) the Borrower and 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 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, 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;
(ive) 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) 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 Revolving Credit Lender that has requested a Revolving Credit Noteall Lenders, and complying with the terms of, of Section 2.11(a) 2.12.; and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1initially to be a party thereto;
(iv) an opinion of H▇▇▇▇ Lovells Arent Fox LLP, counsel to the Borrower and the other Loan PartiesGuarantors, and addressed to the Administrative Agent and the Lenders and covering the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit O;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Person;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person 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 a Loan Party such 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, 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 (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 Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(x) an Unencumbered Pool Certificate calculated as of the Effective Date;
(xi) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2007;
(xii) intentionally deleted;
(xiii) evidence satisfactory to the Agent 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 3.53.6., together with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xvxiv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(ii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(iii) the The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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
, 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 (iv1) 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) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Notes and Term Loan Notes executed by the Borrower, payable to each Revolving Credit applicable Lender that has requested requesting a Revolving Credit Note, Note or Term Loan Note and complying with the terms ofapplicable provisions of Section 2.11., Section 2.11(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent KRG Magellan, each Subsidiary that owns or leases an Initial Unencumbered Pool Property and any Subsidiary which is otherwise required to be a Guarantor and by each pursuant to Section 4.3., if any, as of the Subsidiary Guarantors identified in Schedule 1.1Effective Date, and the Springing Guaranty executed by the Parent;
(iv) an opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership or other comparable organizational document instrument (if any) of the Borrower and each other Loan Party certified as of a 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 (except that, if any or a certification from the Secretary of the Parent that there have been no changes to such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant organizational instrument since the date such organizational instrument was previously provided 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)Agent;
(viv) a certificate of good standing (or certificate of similar meaning) meaning with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each the state in which a 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 BorrowingBorrowings, requests for Letters Notices of Credit, Continuation and 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 (except that, if any or a certification from the Secretary of the Parent that there have been no changes to such documents since the date such document delivered to Administrative Agent pursuant was previously provided 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) 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) evidence of the insurance required Fees then due and payable under Section 8.53.6., 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 certificate Compliance Certificate calculated as of the Borrower Effective Date (using unaudited pro forma consolidated figures as of March 31, 2014 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 Parent Guarantor certifying that use of the Properties identified in Schedule 4.1 satisfy proceeds of the requirements for inclusion in Loans to be funded on the Unencumbered Pool under this AgreementAgreement Date);
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019[Reserved];
(xii) a Disbursement Instruction Agreement effective as closing of the Agreement Datemerger of Inland Diversified into KRG Magellan;
(xiii) if applicable, a disbursement statement setting forth in reasonable detail the application of the initial Loans being funded on the Effective Date;
(xiv) evidence that the Fees (including, to the extent then due, the “Fees” (under and as defined in the Existing Credit Agreement) and interest any lenders under the Existing Credit Agreement accrued through and the Effective Date), if any, then due and payable under Section 3.5, together with, Existing Term Loan Agreement that are not becoming or continuing (as applicable) as Lenders hereunder have agreed to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, accept repayment of all other fees, expenses and reimbursement amounts due them under the Existing Credit Agreement and payable to the Administrative Agent Existing Term Loan Agreement and any terminate their commitments thereunder, as applicable;
(xv) evidence of the Lendersrelease of Parent from any guaranty, including, without limitation, the reasonable and documented fees and expenses guaranty in favor of counsel The Huntington National Bank with respect to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the BorrowerParkside Town Commons project; and
(xvxvi) such other documents 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) In the good faith and reasonable judgment of the Administrative AgentAgent 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;
(ii) 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 (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
(iii) the Parent, the Borrower and the its other Loan Parties Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any material 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 (ivA) 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) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Five Year Term Notes executed by the Borrower, payable to each Revolving Credit Five Year Term Lender (other than any Five Year Term Lender that has requested that it not receive a Revolving Credit Five Year Term Note, ) and complying with the terms of, applicable provisions of Section 2.11(a2.8.(a) and a (B) Seven Year Term Loan Note Notes executed by the Borrower, payable to each applicable Seven Year Term Loan Lender (other than any Seven Year Term Lender that has requested that it not receive a Seven Year Term Loan Note, ) and complying with the terms of, applicable provisions of Section 2.11(a2.8.(b);
(iii) the The Guaranty executed by the Parent and each other Guarantor and by each existing as of the Subsidiary Guarantors identified in Schedule 1.1Effective Date;
(iv) an A Transfer Authorizer Designation Form effective as of the Agreement Date;
(v) An opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and and, the Lenders and Lenders, addressing the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit H;
(vvi) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (if any) of the Borrower and each other Loan Party certified as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State (or comparable official) of the state of formation of such Loan Party (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the Existing Credit Agreement has not been modified or amended and remains in full force and effect, a certificate of the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be delivered in lieu of delivery of a current certified copy of such document)Party;
(vivii) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State (or comparable official) of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued 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 a 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, requests for Letters of Credit, Notices of Conversion Borrowing 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 (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 (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;
(ixx) evidence If requested by the Administrative Agent, certificates of insurance evidencing the existence of all insurance required under Section 8.5;
(x) a certificate of to be maintained by Loan Parties pursuant to the Borrower Agreement, and the Parent Guarantor certifying that Administrative Agent shall be reasonably satisfied with the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreementtype and extent of such coverage;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence that the 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 3.53.6., together 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 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;
(ixii) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulationsA Compliance Certificate calculated as of March 31, including the Patriot Act, and 2011 (ii) giving pro forma effect to the extent financing contemplated by this Agreement and the Borrower qualifies as a “legal entity customer” under use of the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation proceeds of the Loans to be funded on the BorrowerEffective Date); and
(xvxiii) such Such other documents 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) In the good faith and reasonable judgment of the Administrative AgentAgent and the Lenders:
(i) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(ii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Parent, the Borrower and the other Loan Parties Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any material 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
(iv) 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) 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 Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, of Section 2.11(a2.10.(a) and 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(b);
(iiiA) An opinion of Shulman, Rogers, Gandal, Pordy & ▇▇▇▇▇, P.A., counsel to the Guaranty executed by Borrower, addressed to the Parent Guarantor Arranging Agents and by each 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 Subsidiary Guarantors identified Borrower, addressed the Arranging Agents and the Lenders, in Schedule 1.1substantially the form of Exhibit M-2;
(iv) an opinion the declaration of H▇▇▇▇ Lovells LLP, counsel to trust of the Borrower certified as of a recent date by the Department of Consumer and Regulatory Affairs of the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative AgentDistrict of Columbia;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a 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 (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 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 Department of State Consumer and Regulatory Affairs of the state District of formation of each such Person Columbia 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 a Loan Party the Borrower is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(viivi) 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 officers of such Loan Party the Borrower authorized to execute and deliver the Loan Documents to which such Loan Party the Borrower is a party, party and in the case of the Borrower, authorized to execute and deliver on behalf officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Continuation and Notices of Conversion and Notices to request the issuance of ContinuationLetters of Credit;
(viiivii) certified copies (certified by the Secretary or Assistant Secretary (or other individual performing similar functionsof the Borrower) 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 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) evidence The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Material Subsidiary certified as of a recent date by the Secretary of State of the insurance required under Section 8.5;
state of formation of such Material Subsidiary; (x) a 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 good standing or certificate of similar meaning with respect to each Material Subsidiary issued as of a recent date by the Agreement Date and calculated as Secretary of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as State of the Agreement Date;
state of formation of each such Material Subsidiary and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (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, 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 state department of the Lenderstaxation, including, without limitation, the reasonable and documented fees and expenses as applicable) of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested each state in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xv) which such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(ii) 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 Subsidiary is a party;
(iii) the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby 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
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.be so qualified;
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) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Notes and Bid Rate Notes executed by the Borrower, payable to each Revolving Credit Lender that has requested a Revolving Credit Note(or Designated Lender, if applicable) and complying with the terms ofapplicable provisions of Section 2.11., Section 2.11(a) and a Term Loan the Swingline 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 The Guaranty executed by the Parent and each other Guarantor and by each existing as of the Subsidiary Guarantors identified in Schedule 1.1Effective Date;
(iv) an An opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and Agent, the Lenders and the Swingline Lender, addressing the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit M;
(v) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership or other comparable organizational document instrument (if any) of the Borrower and each other 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 (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)Party;
(vi) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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 BorrowingBorrowings, requests for Letters Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Credit, Continuation and 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 (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 (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) evidence of the insurance required The Fees then due and payable under Section 8.53.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(x) a certificate A Compliance Certificate calculated as of March 31, 2007 (giving pro forma effect to the financing contemplated by this Agreement and the use of the Borrower and proceeds of the Parent Guarantor certifying that Loans to be funded on the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this AgreementEffective 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 Compliance Certificate duly authorized officer of the Pledgor;
(xiii) Each document (including, without limitation, any UCC financing statement) required by the Pledge Agreement 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 calculated as (c) the estoppel certificate referred to in Section 7.8 of September 30the 1221 Shareholder’s Agreement, 2019;
(xii) a Disbursement Instruction Agreement effective executed by Rockefeller Group International, Inc. and dated as of the Agreement Date;
(xiiixvii) evidence that the Fees (including, A payoff letter in form and substance reasonably satisfactory to the extent then dueAgent with respect to the Indebtedness owing by Green Hill Acquisition LLC (“Green Hill”) pursuant to that certain Amended and Restated Loan Agreement dated as of May 6, the “Fees” 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 (under USA) LLC 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 3.5Green Hill, together with, with such releases or authorizations as the Agent may reasonably request to evidence 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 termination or release of any of the Lenders, including, without limitation, the reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paidLiens granted by any Loan Party pursuant thereto;
(ixviii) all documentation and Such other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulationsdocuments, 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) 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) In the good faith and reasonable judgment of the Administrative AgentAgent and the Lenders:
(i) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(ii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Parent, the Borrower and the other Loan Parties 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 material 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
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the 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) 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 Revolving Credit applicable Lender (but excluding any Lender that has requested a Revolving Credit Note, that it not receive Notes) and complying with the terms of, of Section 2.11(a2.12(a) and a Term Loan the Swingline 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 The Subsidiary Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1applicable parties thereto;
(iv) an opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the such other Loan PartiesParties as the Administrative Agent may request, 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, 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 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 five percent (5%);
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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 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) evidence a Borrowing Base Certificate calculated as of the insurance required under Section 8.5Cutoff Date;
(x) a certificate of Compliance Certificate calculated on a pro forma basis for 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 AgreementBorrower’s fiscal quarter ending March 31, 2021;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixiv) all documentation and other information regarding with respect to each Borrowing Base Property identified on Schedule 4.1, each of the Borrower requested items referred to in Section 6.3 required to be delivered in connection with applicable “know your customer” any Borrowing Base Property;
(xv) UCC, tax, judgment and anti-money laundering rules and regulations, including the Patriot Act, and (ii) lien search reports with respect to the extent 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 qualifies and such other Persons as a “legal entity customer” the Administrative Agent and Lenders shall reasonably require;
(xviii) A certificate of the Borrower certifying that the Loans are permitted under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrowerany Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence thereto; and
(xvxix) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and.
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(iic) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) the Borrower and 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 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
(ive) 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 Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, Section 2.11(a) and a Term Loan Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1;
(iv) an opinion of H▇▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a 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 (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 of the Borrower and the Parent Guarantor issued as of a date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which 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, 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) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(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, 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 fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with 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) 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 Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, Section 2.11(a) and 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)Lender;
(iii) the Second Amended and Restated Repayment Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1Guarantor;
(iv) an opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower Guarantor and general partner of the other Loan PartiesBorrower, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) partnership, as applicable, 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 (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)California;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person California and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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) evidence of a Compliance Certificate calculated on a pro forma basis for the insurance required under Section 8.5Borrower’s fiscal quarter ending March 31, 2014;
(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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixi) the Fee Letter;
(xii) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xvxiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(iic) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) the Borrower and the each other Loan Parties Party shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which could not reasonably be likely to (X) have a Material Adverse Effect, or (Y) restrain or enjoin or 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
(ive) 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: Revolving Credit Agreement (Ps Business Parks Inc/Ca)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Notes and Bid Rate Notes executed by the Borrower, payable to each Revolving Credit applicable Lender (including any Designated Lender, if applicable), other than any Lender that has requested that it not receive a Revolving Credit Note, and complying with the terms of, of Section 2.11(a2.11.
(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1initially to be a party thereto;
(iv) an opinion of H▇▇▇▇▇ Lovells & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower Parent and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit O;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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) evidence of a Compliance Certificate calculated on a pro forma basis for the insurance required under Section 8.5Borrower’s fiscal quarter ending December 31, 2017;
(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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixi) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xvxii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(ii) 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 Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower Parent and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby 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, 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, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iv) the Parent, the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with 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 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 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 and Bid Rate Notes executed by the Borrower, payable to each Revolving Credit Lender that has requested a Revolving Credit Note(or Designated Lender, if applicable) and complying with the terms ofapplicable provisions of Section 2.11., Section 2.11(a) and a Term Loan the Swingline 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 The Guaranty executed by the Parent each Guarantor and by each existing as of the Subsidiary Guarantors identified in Schedule 1.1Effective Date;
(iv) an An opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower and those Guarantor to which, together with the other Loan PartiesBorrower, at least 90.0% of Adjusted Asset Value is attributable, addressed to the Administrative Agent and Agent, the Lenders and the Swingline Lender, addressing the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit M;
(v) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership or other comparable organizational document instrument (if any) of the Borrower and each such other 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 (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)Party;
(vi) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each of the Borrower and the Parent Guarantor such Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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 such Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Credit 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 BorrowingBorrowings, requests for Letters Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Credit, Continuation and 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 such 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 (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 (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Credit Documents to which it is a party;
(ix) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence that the 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 3.53.6., together with, and any other Fees payable to the extent a reasonably detailed invoice has been delivered to Agent, the Borrower Titled Agents and the Lenders on or 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 fees and expenses of counsel to the Administrative Agent, have been paidEffective Date;
(ix) A Compliance Certificate calculated as of March 31, 2005 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Closing Date);
(xi) Copies of the Intercreditor Agreement and the Pledge Agreement, together with all documentation amendments and other information regarding supplements thereto, certified by a officer of the Borrower requested to be true, correct and complete copies and in full force and effect;
(xii) Copies of each opinion letter delivered in connection with applicable “know your customer” the Intercreditor Agreement and anti-money laundering rules and regulations, including the Patriot ActPledge Agreement, and (ii) to if requested by the extent Agent, reliance letters from the Borrower qualifies as a “legal entity customer” under law firms delivering such opinions stating that the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to Agent and the BorrowerLenders may rely on such opinion letters; and
(xvxiii) such Such other documents 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) In the good faith and reasonable judgment of the Administrative AgentAgent and the Lenders:
(i) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(ii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Credit Documents to which it is a party;
(iii) the The Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any material 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 Credit Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the 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 ActCredit Documents.
Appears in 1 contract
Sources: Credit Agreement (St Joe Co)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event 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 Revolving Credit Lender (other than any Lender that has requested a Revolving Credit that it not receive any Note, ) and complying with the terms of, of Section 2.11(a2.11.(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1;[Intentionally deleted.]
(iv) an opinion of H▇▇▇▇▇▇▇▇ Lovells & Worcester LLP, and an opinion of ▇▇▇▇ ▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to covering such matters as the Administrative AgentAgent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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) evidence a Notice of Term Loan Borrowing and Notice of Revolving Borrowing executed by the insurance required under Section 8.5Borrower;
(x) a certificate Compliance Certificate calculated as of the Borrower and Effective Date on a pro forma basis for the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this AgreementBorrower’s fiscal quarter ended September 30, 2014;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixii) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixiii) if requested by the Administrative Agent, insurance certificates, or other evidence, providing that the insurance coverage required under Section 7.5. (including, without limitation, both property and liability insurance) is in full force and effect;
(xiv) evidence that all documentation and other information regarding indebtedness, liabilities or obligations owing by the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” Loan Parties under the Beneficial Ownership Regulation, a Beneficial Ownership Certification Existing Credit Agreements shall have been paid in relation to full concurrently with the Borrowerfirst Credit Event hereunder; and
(xv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(iic) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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, 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;
(ive) 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) if requested by any Lender pursuant to Section 2.11(aNotes (or replacement Notes, as the case may be) at least three (3) days prior to the date hereof, Revolving Credit Notes executed by the Borrower, payable to each Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, Section 2.11(a) and 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, of Section 2.11(a2.12(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1;
(iv) an opinion of H▇▇▇▇ Lovells LLP, outside counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to covering such matters as the Administrative AgentAgent may request;
(viv) (A) copies of the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 Person (or in the case of any Loan Party (except thatother than the Borrower, if any such document relating other date acceptable to any Subsidiary Guarantor delivered to the Administrative Agent pursuant to so long as such organizational documents are certified as of the Existing Credit Agreement has not been modified or amended and remains in full force and effect, a certificate of 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 Subsidiary Guarantor so stating may be delivered in lieu of delivery of a current certified copy of such document)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 of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person 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 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 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, 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 (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 (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) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiix) a pro forma Compliance Certificate prepared as of September 30, 2023;
(xi) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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, including without limitation, the reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xvxii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In (i) the good faith Merger shall be consummated substantially concurrently with the Refinancing on the Effective Date in accordance in all material respects with the Merger Agreement and reasonable judgment (ii) all Existing Term Loans that are not repaid or assumed as part of the Administrative Agent:Refinancing shall have been repaid in full;
(ic) 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;
(iid) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which is reasonably likely to be adversely determined, and, if adversely determined, could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiie) the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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, 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;
(ivf) 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) 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 Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, of Section 2.11(a) 2.11. and a Term Loan the Swingline 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)Swingline Lender;
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1initially to be a party thereto;
(iv) an opinion of H▇▇▇▇ Lovells White & Case LLP, counsel to the Borrower and the other Loan PartiesGuarantors, and addressed to the Administrative Agent and the Lenders and covering the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit L;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Person;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person 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 a Loan Party such 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, 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 (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 Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) evidence a Borrowing Base Certificate calculated as of the insurance required under Section 8.5Effective Date;
(x) a certificate of Compliance Certificate calculated on a pro forma basis for 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 AgreementBorrower’s fiscal quarter ending March 31, 2004;
(xi) a Compliance Certificate dated evidence of such insurance as of the Agreement Date and calculated as of September 30, 2019is required pursuant to Section 8.5.;
(xii) a Disbursement Instruction Agreement effective as with respect to each Property identified on Schedule 4.1., each of the Agreement Dateitems referred to in Section 6.3. required to be delivered in connection with any Collateral Property;
(xiii) evidence satisfactory to the Agent that the Fees (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 3.53.6., together with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixiv) all documentation and other Letters from the administrative agent under the Existing Credit Agreement providing information regarding the Borrower requested payment in full of amounts outstanding thereunder and providing for the termination thereof and all Liens granted in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrowertherewith; and
(xv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(ii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There 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) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereofRevolving Notes, Revolving Credit Term Notes and Bid Rate Notes executed by the Borrower, payable to each Revolving Credit applicable Lender (including any Designated Lender, if applicable but excluding any Lender that has requested a Revolving Credit Note, that it not receive Notes) and complying with the terms of, of Section 2.11(a2.12.(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1initially to be a party thereto, if any;
(iv) an opinion of H▇▇▇▇ Lovells LLP, in-house or outside counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to covering such matters as the Administrative AgentAgent may request;
(v) copies of the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 Person (or in the case of any Loan Party (except thatother than the Borrower, if any such document relating other date acceptable to any Subsidiary Guarantor delivered to the Administrative Agent pursuant to so long as such organizational documents are certified as of the Existing Credit Agreement has not been modified or amended and remains in full force and effect, a certificate of Effective Date by 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 documentthe applicable Loan Party);
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person 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 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 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, 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) evidence an Unencumbered Asset Certificate calculated as of the insurance required under Section 8.5;March 31, 2015,
(x) a certificate of Compliance Certificate calculated on a pro forma basis for 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;Borrower’s fiscal quarter ending March 31, 2015,
(xi) a Compliance Closing Certificate dated as substantially in form of Exhibit T, executed on behalf of the Agreement Date and calculated as Borrower by an authorized officer of September 30, 2019the Borrower;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence that all indebtedness, liabilities or obligations owing by the Fees (including, to the extent then due, the “Fees” (under and as defined in the Existing Credit Agreement) and interest Loan Parties under the Existing Credit Agreement accrued through shall have been paid in full;
(xiv) evidence that the Effective Date)Fees, if any, then due and payable under Section 3.5., together with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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, including without limitation, the reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xv) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith 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 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;
(iic) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which is reasonably likely to be adversely determined, and, if adversely determined, could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (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
(ive) 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 to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Creditmake their respective Loans, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) 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 Revolving Credit all Lenders (other than any Lender that has requested that it not receive a Revolving Credit Note, and complying with the terms of, Section 2.11(a) and a Term Loan Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1initially to be a party thereto;
(iv) (A) an opinion of H▇▇▇▇▇▇ Lovells & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan PartiesRealty Income, addressed to the Administrative Agent and the Lenders and covering the matters set forth in form and substance reasonably satisfactory Exhibit H-1, (B) an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, special Maryland counsel to Realty Income, addressed to the Administrative AgentAgent and the Lenders and covering the matters set forth in Exhibit H-2, and (C) an opinion of Realty Income’s general counsel addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit H-3;
(v) copies of the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (if any) of each Loan Party Party, reflecting such Loan Party’s name and 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 Person (or in the case of any Loan Party (except thatother than the Borrower or Realty Income, if any such document relating other date acceptable to any Subsidiary Guarantor delivered to the Administrative Agent pursuant to so long as such organizational documents are certified as of the Existing Credit Agreement has not been modified or amended and remains in full force and effect, a certificate of Effective Date by 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 documentthe applicable Loan Party);
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person 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 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 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 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 the Notice of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, and 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 (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 (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 (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) evidence a Closing Certificate substantially in form of Exhibit I, executed on behalf of the insurance required under Section 8.5Borrower by an authorized officer of the Borrower;
(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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixi) evidence satisfactory to the Administrative Agent 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 3.53.6., together with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixii) all documentation the “Merger” has defined in that certain Agreement and other information regarding the Borrower requested in connection with applicable “know your customer” Plan of Merger dated as of September 6, 2012 by and anti-money laundering rules among Realty Income, Tau Acquisition LLC and regulationsAmerican Realty Capital Trust, 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 BorrowerInc. has been consummated; and
(xvxiii) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(ii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing 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 Realty Income or the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the The Borrower and the other Loan Parties Realty Income shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby 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 the Borrower or Realty Income is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or Realty Income to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with 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 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 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) if requested by Revolving Notes (except for any Lender pursuant who has requested not to Section 2.11(a) at least three (3) days prior to the date hereofreceive a promissory note), Revolving Credit Notes executed by the Borrower, payable to each Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, applicable provisions of Section 2.11(a) and 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)2.11;
(iii) the Facility Guaranty executed by the Parent and each other Person that the Borrower elects to make a Guarantor and by each of on the Subsidiary Guarantors identified in Schedule 1.1Effective Date;
(iv) an opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership or other comparable organizational document instrument (if any) of the Borrower and each other 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 (except thatParty, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to or, in the Existing Credit Agreement has not been modified or amended and remains in full force and effectcase of the Parent only, a certificate of certified by 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)the Parent;
(vi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, requests for Letters of Credit, Continuation and 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 (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 (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) evidence a certificate from a Responsible Officer of the insurance required under Section 8.5Parent and the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects (or, in the case of any such representation already qualified by materiality, in all respects) and (y) immediately after giving effect to the transactions contemplated by this Agreement, no Default or Event of Default shall exist;
(x) a certificate of the Borrower Fees then due and payable under Section 3.6, and any other Fees payable to the Agent, the Titled Agents and the Parent Guarantor certifying that Lenders on or prior to the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this AgreementEffective Date;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 20192024 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(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, 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 fees and expenses of counsel to the Administrative Agent, have been paid;
(iA) all documentation and other information regarding about the Borrower Loan Parties as shall have been reasonably requested in connection with by the Agent or any Lender that it shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation, the Patriot Act, Act and (iiB) 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 BorrowerBorrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (B) shall be deemed to be satisfied); and
(xvxiii) such other documents 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) In the good faith and reasonable judgment of the Administrative AgentAgent and the Lenders:
(i) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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, 2023 that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Parent, the Borrower and the other Loan Parties Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any material 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
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the 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 the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of CreditLoan, 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 Agreement, the Pari Passu Intercreditor Agreement, the Parent Guaranty and the Subsidiary Guaranty executed by each of the parties heretohereto and thereto;
(ii) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Term Notes executed by the Borrower, payable to each Revolving Credit Lender (other than a Lender that has requested not to receive a Revolving Credit Term Note, as applicable) and complying with the terms of, applicable provisions of Section 2.11(a) and 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)2.11;
(iii) Counterparts of the Guaranty Pledge Agreement, executed by (a) the Parent Guarantor Borrower and by each Wholly-Owned Subsidiary holding a direct or indirect Equity Interest in, any California Partnership, (b) each of the other holders of a direct Equity Interest in, any California Partnership, and (c) in the case of any California Partnership owning or leasing any Real Estate Asset through a California Partnership Subsidiary, such California Partnership and each California Partnership Subsidiary Guarantors identified directly or indirectly owning or leasing the applicable Real Estate Asset, in Schedule 1.1each case in form and substance satisfactory to the Administrative Agent;
(iv) an opinion Opinions of H▇▇▇▇ Lovells LLP, counsel to the Borrower Loan Parties (limited in scope to NSA REIT, the Borrower, each Subsidiary Guarantor and each other pledgor under the other Loan PartiesPledge Agreement), addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative AgentLenders;
(v) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (or comparable official) of the state of formation of such Loan Party, or in lieu thereof a certification from each Loan Party that its articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (except that, if any such document relating to any Subsidiary Guarantor any) have not changed from those previously delivered to Administrative Agent pursuant to the Existing administrative agent under the Revolver 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)Agreement;
(vi) a A certificate of good standing (or certificate of similar meaning) meaning with respect to NSA REIT, the Borrower, each of the Borrower and the Parent Guarantor Subsidiary Guarantor, issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State (or comparable official) of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued 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 a the failure of 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 each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, and the officers of NSA REIT, as general partner of the Borrower, then authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion Continuation and Notices of Continuation;Conversion
(viii) 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 (except thatentity, if any such or in lieu thereof a certification from 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 Administrative Agent pursuant to the Existing administrative agent under the Revolver 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 (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) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence that the 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 3.53.6, together with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent Agent, the Titled Agents and any of the Lenders, including, without limitation, Lenders on or prior to the Effective Date (including the reasonable and documented fees fees, charges and expenses disbursements of counsel to the Administrative Agent, have been paid);
(ix) The results of a recent UCC lien search in the jurisdiction of organization of the Borrower, which search results shall reveal no Liens on any of the assets of the Borrower except for Liens permitted by Section 10.6 or discharged on or prior to the Effective Date pursuant to a payoff letter or other documentation reasonably satisfactory to the Administrative Agent;
(xi) A perfection certificate for each pledgor under the Pledge Agreement, in the form provided by the Administrative Agent, signed by a Responsible Officer, or in lieu thereof a certification from each pledgor that the perfection certificates (and the information contained therein) have not changed from those previously delivered to the administrative agent under the Revolver Credit Agreement;
(xii) certificates and instruments representing the Equity Interests (to the extent such Equity Interests are certificated as of the Effective Date) pledged as Collateral pursuant to the Pledge Agreement, accompanied by undated stock powers or instruments of transfer executed in blank, to the extent not held by the agent under the Revolver Credit Agreement or another party in accordance with the Pari Passu Intercreditor Agreement or similar agreement;
(xiii) Proper UCC-1 financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Collateral Documents, covering the Collateral;
(xiv) A Compliance Certificate calculated as of March 31, 2016 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xv) A certificate signed by a Responsible Officer, certifying that the conditions set forth in Section 6.1(b) have been satisfied;
(xvi) such due diligence with respect to Eligible Unencumbered Properties as the Administrative Agent may reasonably request;
(xvii) All documentation and other information regarding the Borrower requested in connection with required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot USA PATRIOT Act, and a properly completed and signed IRS Form W-8 or W-9, as applicable, for each Loan Party;
(iixviii) to Evidence of consent by the extent the Borrower qualifies as a “legal entity customer” lenders under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation Revolver Credit Agreement to permit the Borrowerliens granted by and pledge of collateral under this Agreement and the other Loan Documents; and
(xvxix) such Such other documents 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) In the good faith and reasonable judgment determination of the Administrative AgentAgent and the Lenders:
(i) there shall not have occurred or become known Both immediately before and immediately after giving effect to the Administrative Agent or any financing contemplated by this Agreement and the use of the Lenders any event, condition, situation or status since the date proceeds of the information contained in Loans to be funded on the financial and business projectionsEffective Date, 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;
(ii) 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 no Default or Event of Default exists, (B) restrain the representations and warranties made or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other deemed made by each Loan Party to fulfill its obligations under in the Loan Documents to which it is a partyparty are true and correct in all material respects (or in all respects to the extent that such representations and warranties are already subject to concepts of materiality) on and as of the Effective Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties are true and correct in such respects on and as of such earlier date);
(ii) There shall not have occurred any material adverse change since December 31, 2015, in the business, assets, operations or condition (financial or otherwise) of any Loan Party, or in the facts and information regarding any Loan Party provided by or on behalf of any Loan Party to the Administrative Agent or any Lender;
(iii) After giving effect to the Borrower 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 the Loan Parties’ financial obligations (other Loan Parties than de minimis obligations) in existence on the Effective Date; and
(iv) NSA REIT and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any material default under, material conflict with or material violation of (A1) any Applicable Law or (B2) any material agreement, document or instrument to which any Loan Party is a party or by which any of them Loan Party or their respective its properties is bound; and
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with 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) 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 BorrowerBorrowers, payable to each Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, of Section 2.11(a) and 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(a2.12(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1initially to be a party thereto;
(iv) an opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower Borrowers and the such other Loan PartiesParties as Administrative Agent may request, addressed to the Administrative Agent and the Lenders and in a form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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) evidence a Borrowing Base Certificate calculated as of the insurance required under Section 8.5Agreement Date;
(x) a certificate of Compliance Certificate calculated on a pro forma basis for 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 AgreementBorrowers’ fiscal quarter ending March 31, 2012;
(xi) a Compliance Certificate dated as with respect to each Property identified on Schedule 4.1, each of the Agreement Date and calculated as of September 30, 2019items 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;
(xiii) UCC, tax, judgment and lien search reports with respect to the Borrowers (or a Subsidiary if any Borrowing Base Property is owned by a Subsidiary) and each Borrowing Base Property in all necessary or appropriate jurisdictions indicating that there are no Liens of record on such Property other than Permitted Liens;
(xiv) copies of all Material Contracts and Specified Derivatives Contracts in existence on the Agreement Date;
(xv) copies of the form of Tenant Lease (if any) to be used for each Borrowing Base Property from the Agreement Date until the Maturity Date and each Tenant Lease entered into as of the Agreement Date with respect to such Property;
(xvi) the Fee Letter;
(xvii) evidence 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixviii) all documentation insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 (including, without limitation, both property and other information regarding liability insurance) is in full force and effect and stating that the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including coverage shall not be cancelable or materially changed without ten (10) days prior written notice to the Patriot ActAdministrative Agent of any cancellation for nonpayment or premiums, and not less than thirty (ii30) days prior written notice to the extent Administrative Agent of any other cancellation or any modification (including a reduction in coverage), together with appropriate evidence that the Borrower qualifies Administrative Agent, for its benefit and the benefit of the Lenders, the Issuing Bank, and the Specified Derivatives Providers is named as a “legal entity customer” under lender’s loss payee and additional insured, as appropriate, on all insurance policies that the Beneficial Ownership RegulationBorrowers, a Beneficial Ownership Certification in relation any Loan Party or any other Subsidiary actually maintains with respect to the Borrowerany Property and improvements on such Property; and
(xvxix) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or or, to Borrower’s knowledge, 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 Borrowers or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower Borrowers and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby 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;
(iv) 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.)
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 hereofRevolving Notes, Revolving Credit Tranche A Term Loan Notes and Tranche B Term Loan Notes executed by the Borrower, payable to each Revolving Credit applicable Lender (but excluding any Lender that has requested a Revolving Credit Note, that it not receive Notes) and complying with the terms of, of Section 2.11(a2.11.
(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1initially to be a party thereto;
(iv) an opinion of H▇▇▇▇ Lovells K&L Gates, LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance covering the matters reasonably satisfactory to requested by the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (if any) of each Loan Party certified as of a date not earlier than fifteen within thirty (1530) days prior to of the Effective Agreement Date by the Secretary of State of the state of formation of such Loan Party (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the Existing Credit Agreement has not been modified or amended and remains in full force and effect, a certificate of the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be delivered in lieu of delivery of a current certified copy of such document)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued within thirty-five (35) days of the Borrower and the Parent Guarantor issued as of a date not earlier than fifteen (15) days prior to the Effective Agreement Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as within thirty-five (35) days of a recent date the Agreement Date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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) evidence a Compliance Certificate calculated as of the insurance Parent’s fiscal quarter ended June 30, 2013, giving pro forma effect to the repayment of indebtedness, liabilities and obligations required under Section 8.55.1.(a)(xii) and the occurrence of any Credit Event on the Agreement Date, or if such Compliance Certificate is not delivered on the Agreement Date, the occurrence of any Credit Event on such later date that the Compliance Certificate is delivered;
(x) a 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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixi) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixii) all documentation and other information regarding a closing statement executed by the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulationsindicating that all indebtedness, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” liabilities or obligations owing under the Beneficial Ownership RegulationExisting Credit Agreement and Existing Term Loan Agreement will be paid in full and all commitments under the Existing Credit Agreement will be terminated, a Beneficial Ownership Certification in relation to each case, concurrently with the Borrower; andfirst Credit Event hereunder;
(xvxiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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, budgets2012, 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and 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 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;
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with 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. The parties hereto acknowledge and agree that the conditions set forth in Section 5.1.(a) shall be required to be satisfied only once (other than with respect to those items required to be satisfied under Section 7.11.).
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit 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 Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, Section 2.11(a) ), and a Term Loan Note Notes executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1;
(iv) an opinion of H▇▇▇▇ Lovells ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a 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 (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 of the Borrower and the Parent Guarantor issued as of a date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which 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, 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) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement[intentionally omitted];
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019[intentionally omitted];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(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, 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 fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and;
(xv) [intentionally omitted];
(xvi) a copy of a duly executed amendment to the Capital One Term Loan Agreement, consistent with the modifications contemplated hereby;
(xvii) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with 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 reasonably satisfactory to the Administrative Agent:
(i) counterparts 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 Revolving Credit Lender (other than a Lender that has requested not to receive a Revolving Credit Note, ) and complying with the terms ofapplicable provisions of Section 2.11., Section 2.11(a) and a Term Loan Note the Swingline Notes executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the The Guaranty executed by the Parent Guarantor and by each Subsidiary to which either of the Subsidiary Guarantors identified conditions set forth in Schedule 1.1Section 7.12.(a) applies as of the Effective Date;
(iv) an opinion A Disbursement Instruction Agreement effective as of H▇▇▇▇ Lovells LLP, the Agreement Date;
(v) Customary opinions of counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and and, the Lenders and in form and substance reasonably satisfactory to the Administrative AgentLenders;
(vvi) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (if any) of the Borrower and each other Loan Party certified as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State (or comparable official) of the state of formation of such Loan Party (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the Existing Credit Agreement has not been modified or amended and remains in full force and effect, a certificate of the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be delivered in lieu of delivery of a current certified copy of such document)Party;
(vivii) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State (or comparable official) of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued 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 a 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 BorrowingBorrowings, requests for Letters Notices of Credit, Continuation and 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 (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 (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;
(ixx) evidence If requested by the Administrative Agent, certificates of insurance evidencing the existence of all insurance required under Section 8.5;
(x) a certificate of to be maintained by Loan Parties pursuant to the Borrower Agreement, and the Parent Guarantor certifying that Administrative Agent shall be reasonably satisfied with the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreementtype and extent of such coverage;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence that the 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 3.53.6., together with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent Agent, the Titled Agents and any 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 financing contemplated by this Agreement and the use of the Lendersproceeds 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 reasonable PATRIOT Act and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with any applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and at least five (ii5) Business Days prior to the extent the Borrower Closing Date;
(xiv) A Beneficial Ownership Certification in relation to each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation Regulation at least five (5) Business Days prior to the BorrowerClosing Date;
(xv) Evidence that all “Indebtedness” (as defined in the Existing Term Loan Agreement) outstanding under the Existing Term Loan Agreement shall be repaid with the proceeds of the Revolving Loans to be made by the Lenders hereunder on the Effective Date and evidence that 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 terminated; and
(xvxvi) such Such other documents 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) In the good faith and reasonable judgment of the Administrative AgentAgent and the Lenders:
(i) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(ii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (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
(iii) The Parent, the Borrower and the other Loan Parties Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any material 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 (ivA) 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) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Notes and Term Notes executed by the Borrower, payable to each Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms ofapplicable provisions of Section 2.11., Section 2.11(a) and a Term Loan the Swingline 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 The Guaranty executed by the Parent and each other Guarantor and by each existing as of the Subsidiary Guarantors identified in Schedule 1.1Effective Date;
(iv) an A Transfer Authorizer Designation Form effective as of the Agreement Date;
(v) An opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and and, the Lenders and Lenders, addressing the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit J;
(vvi) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (if any) of the Borrower and each other Loan Party certified as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State (or comparable official) of the state of formation of such Loan Party (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the Existing Credit Agreement has not been modified or amended and remains in full force and effect, a certificate of the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be delivered in lieu of delivery of a current certified copy of such document)Party;
(vivii) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State (or comparable official) of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued 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 a 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 BorrowingBorrowings, requests for Letters Notices of Credit, Continuation and 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 (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 (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;
(ixx) evidence If requested by the Administrative Agent, certificates of insurance evidencing the existence of all insurance required under Section 8.5;
(x) a certificate of to be maintained by Loan Parties pursuant to the Borrower Agreement, and the Parent Guarantor certifying that Administrative Agent shall be reasonably satisfied with the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreementtype and extent of such coverage;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence that the 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 3.53.6., together 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 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;
(ixii) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulationsA Compliance Certificate calculated as of June 30, including the Patriot Act, and 2010 (ii) giving pro forma effect to the extent financing contemplated by this Agreement and the Borrower qualifies as a “legal entity customer” under use of the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation proceeds of the Loans to be funded on the BorrowerEffective Date); and
(xvxiii) such Such other documents 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) In the good faith and reasonable judgment of the Administrative AgentAgent and the Lenders:
(i) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(ii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Parent, the Borrower and the other Loan Parties Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any material 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
(iv) 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) 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 Revolving Credit Lender (other than any Lender that has requested that it not receive a Revolving Credit Note, ) and complying with the terms of, of Section 2.11(a) and 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(a2.8.(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Parent and each Material Subsidiary Guarantors identified in Schedule 1.1(other than an Excluded Subsidiary or a Foreign Subsidiary) existing as of the Effective Date;
(iv) an opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (if any) of each Loan Party certified (x) 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 and (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 y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be delivered in lieu Loan Party as being a true, correct and complete copy thereof as of delivery of a current certified copy of such document)the Agreement Date;
(viv) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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 (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;
(ixviii) evidence an opinion of counsel to the insurance Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required under Section 8.5by the Administrative Agent;
(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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiiix) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ix) all documentation a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and other information regarding the Borrower requested use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) with respect to each Property identified on Schedule 4.1., each of the items referred to in Section 4.1.(b)(i), (ii), (iv) and (vi) required to be delivered in connection with applicable “know your customer” any Unencumbered Property and anti-money laundering rules and regulations, including the Patriot Act, and (ii) a pro forma operating budget for such Property with respect to the extent current fiscal year;
(xii) insurance certificates, or other evidence, providing that the Borrower qualifies as a “legal entity customer” insurance coverage required under Section 8.5. (including, without limitation, both property and liability insurance) is in full force and effect;
(xiii) each of the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation items required pursuant to Section 13.20.(b) with respect to the BorrowerClosing Date Mortgage and evidence that the real property subject to the Closing Date Mortgage is not in a special flood hazard area;
(xiv) certified copies of enforceable amendments to the Revolving Facility and the Existing Term Loan effected on the Effective Date; and
(xv) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and.
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(iic) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) The Parent, the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (Ai) any Applicable Law or (Bii) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which 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
(ive) 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 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) 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 Revolving Credit Lender (other than any Lender that has requested that it not receive a Revolving Credit Note, ) and complying with the terms of, of Section 2.11(a) and 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(a2.8.(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1initially to be a party thereto;
(iv) an opinion of H▇▇▇▇▇▇▇▇ Lovells & Worcester LLP, an opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel, and an opinion of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLC, special Puerto Rico counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to covering such matters as the Administrative AgentAgent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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, or in the case of any Loan Party (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant other than the Borrower) that is a party to the Existing Credit Agreement and has not been modified or amended and remains in full force and effectaltered its organizational instrument since the date such Loan Party became a party to the Existing Credit Agreement, a certificate of from the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be Loan Party certifying that there have been no changes to the organizational instrument delivered by such Loan Party in lieu of delivery of a current certified copy of such document)connection with the Existing Credit Agreement;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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 Borrower, the Notice of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such 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 thatentity, if or in the case of any such document delivered to Administrative Agent pursuant Loan Party that is a party to the Existing Credit Agreement and has not been modified altered its by-laws, operating agreement, partnership agreement or amended and remains in full force and effectother comparable document since the date such Loan Party became a party to the Existing Credit Agreement, a certificate so stating may be delivered in lieu of delivery of another copy from the Secretary or Assistant Secretary (or other individual performing similar functions) of such document) Loan Party certifying that there have been no changes to the by-laws, operating agreement, partnership agreement or other comparable document delivered by such Loan Party in connection with the Existing Credit Agreement, 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) evidence a Compliance Certificate calculated as of the insurance required under Section 8.5Effective Date on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2011;
(x) a certificate the Notice of Borrowing from the Borrower and for the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this AgreementLoans;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixii) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixiii) a copy of (a) all documentation Operating Agreements, all Ancillary Agreements, the Business Management Agreement, and other information regarding the Borrower requested Property Management Agreement, in connection with applicable “know your customer” each case certified as true, correct and anti-money laundering rules and regulations, including complete by the Patriot Actchief operating officer or chief financial officer of the Borrower, and (iib) an Operating Agreement Abstract with respect to each Operating Agreement for the Unencumbered Assets, in each case, to the extent not previously delivered to the Administrative Agent pursuant to the Existing Credit Agreement; provided, however, that the chief operating officer or chief financial officer of the Borrower qualifies as a “legal entity customer” under shall certify that there have been no changes to any of the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation preceding documents previously delivered to the BorrowerAdministrative Agent pursuant to the Existing Credit Agreement and such documents remain true, correct and complete; and
(xvxiv) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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, 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;
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with 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 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 A Note executed by the Borrower, payable to each Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, Section 2.11(a) and 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(a2.11.(a);
(iii) the Guaranty executed by the Parent 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 the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a 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 (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the Existing “Original Credit Agreement 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 of the Borrower and the Parent Guarantor Loan Party issued as of a date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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 “Original Credit Agreement 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) evidence of the insurance required under Section 8.5.;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 20192012;
(xii) a Disbursement Transfer Authorizer Designation FormDisbursement Instruction Agreement effective as of the Agreement Date;
(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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xvxiv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with 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) if requested by any Lender pursuant one or more certificates of Seller’s corporate secretary attesting to Section 2.11(a) at least three (3) days prior to certain factual matters, certifying the date hereof, Revolving Credit Notes executed by the Borrower, payable to each Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, Section 2.11(a) and a Term Loan Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each text of the Subsidiary Guarantors identified in Schedule 1.1;
(iv) an opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or Seller’s articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a 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 (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 incorporation and bylaws or other governing charter documents, certifying the text of the Borrower and the Parent Guarantor issued as of a date not earlier than fifteen (15resolution(s) days prior to the Effective Date by the Secretary of State of the state board of formation directors or managers of each such Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which 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, 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 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 execute and deliver, on behalf of Seller, this Agreement, each Mortgage Note endorsement, each Assignment in Blank, and all other instruments or documents to be executed and delivered pursuant hereto (MBF being entitled to rely thereon until a new certificate has been furnished to MBF upon which it is a partyMBF shall thereafter be entitled to rely);
(ixc) evidence financial statements of Seller (and, if applicable, its Subsidiaries, on a consolidated basis) containing a balance sheet as of the insurance required under Section 8.5most 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 independent certified public accountants of regional or national standing approved by MBF (such approval not to be unreasonably withheld, delayed or conditioned);
(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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(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, 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 fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xvd) such other financial statements, public record search reports, legal opinions and other documents and instruments statements as the Administrative Agent, or any Lender through the Administrative Agent, MBF 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;
(ii) 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 require under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby 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
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with 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. 5.1.1 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 Agency's obligations under this Agreement are subject to the satisfaction or waiver condition precedent that it has confirmed to the Provider that it has received all of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative AgentAgency:
(ia) counterparts a certified copy of this Agreement executed by each a resolution of the parties hereto;
(ii) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to board of the date hereof, Revolving Credit Notes executed by the Borrower, payable to each Revolving Credit Lender that has requested a Revolving Credit Note, and complying with Provider: i approving the terms of, Section 2.11(a) and a Term Loan Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1;
(iv) an opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a 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 (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 of the Borrower and the Parent Guarantor issued as of a date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which 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, 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 transactions contemplated by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, relevant Finance Documents and resolving that it executes 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 relevant Finance Documents to which it is a party;
(ix) evidence of the insurance required ; ii authorising its Senior Officer or other specified person or persons to execute each relevant Finance Document and to which it is a party on its behalf; iii authorising its seal to be affixed to those relevant Finance Documents to be executed by it under Section 8.5;
(x) a certificate of the Borrower seal; 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 as of September 30iv authorising its Senior Officer or other specified person or persons, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence that the Fees (includingon its behalf, to the extent then duesign and/or despatch all documents and notices to be signed and/or despatched by it under, or in connection with, 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, 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 fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(ii) 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 relevant Finance Documents to which it is a party; v certifying that the Provider will have sufficient funding (whether from its own resources or otherwise) to meet each Milestone Date in accordance with the Scheme Budget and Scheme Details;
(iiib) a copy of the Scheme Budget and the Bid;
(c) counterparts of each Finance Document (other than this Agreement) executed by the Provider;
(d) a Certificate of Title in a form acceptable to the Agency in respect of the ownership of the Charged Property and the Provider's estate or interest in it (being either the freehold estate or a lease for a term of 99 years or more on terms acceptable to the Agency) issued to the Agency by a firm of solicitors certifying among other things that: (a) the Borrower Charged Property is free from any conditions, restrictions, covenants or third party interests;
(e) a letter of undertaking relating to the title and other deeds to the Charged Property and the registration of the Finance Documents duly signed by a firm of solicitors in favour of the Agency;
(f) evidence that all Consents and all other Loan Parties shall Authorisations the Agency considers necessary have been obtained to ensure that each Milestone is met by the relevant Milestone Date;
(g) the Agency has received all approvals, consents a copy of the Initial Valuation in form and waivers, and shall have made or given all necessary filings and notices as shall be required substance satisfactory to consummate the transactions contemplated hereby 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; it and
(ivh) the Borrower and each [any 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 Actscheme specific or property specific conditions].
Appears in 1 contract
Sources: Rent to Buy Facility Agreement
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) : The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(ia) counterparts of this Agreement executed by each of the parties hereto;
(iib) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Notes and Bid Rate Notes executed by the Borrower, payable to each Revolving Credit applicable Lender (including any Designated Lender, if applicable, but excluding any Lender that has requested a Revolving Credit Note, that it not receive Notes) and complying with the terms of, of Section 2.11(a2.13(a) and a Term Loan the Swingline 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);
(iiic) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1initially to be a party thereto;
(ivd) an opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the such other Loan PartiesParties as the Administrative Agent may request, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative AgentLenders;
(ve) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vif) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party 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 a 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;
(viig) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, requests for Letters of Credit, Notices of Conversion Conversion, and Notices of Continuation;
(viiih) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such 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) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xii) a Compliance Certificate dated as and an Unencumbered Asset Value Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending September 30, 2014;
(j) UCC, tax, judgment and lien search reports with respect to the Borrower in all necessary or appropriate jurisdictions indicating that there are no liens of record other than Permitted Liens;
(k) copies of all Specified Derivatives Contracts in existence on the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiil) evidence that a complete listing of all Subsidiaries which are Non-Guarantor Entities;
(m) Borrower shall have paid to Administrative Agent, for the Fees (includingbenefit of Lenders, to the extent then due, the “Fees” (all interest and other fees due under and as defined in the Existing Credit Agreement) and interest under the Existing Credit Agreement accrued through , prorated to the Effective Date);
(n) Lenders, if anyas applicable, then due and payable under Section 3.5, together with, shall have completed whatever balancing transfers amongst themselves as are necessary in order to result in each Lender having the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, outstanding balances referenced on Schedule 1.6 attached hereto;
(o) all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including, without limitation, the reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xvp) such other documents documents, agreements, and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
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 make the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans hereunder is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts 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 BorrowerBorrowers, payable to each Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, applicable provisions of Section 2.11(a) and 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)2.8.;
(iii) the Parent Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1Guarantor;
(iv) an opinion the Negative Pledge Agreements executed by the Borrowers, together with UCC financing statements naming the Borrowers as “debtor,” the Agent as “secured party” to be filed in such jurisdictions as the Agent may deem appropriate in connection with the Negative Pledge Agreement;
(v) one or more opinions of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and Lenders, collectively addressing the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit I;
(vvi) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership or other comparable organizational document instrument (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 (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)Party;
(vivii) a certificate of good standing (or certificate of similar meaning) meaning with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party, in case of the Borrowers, and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each the Secretary of State (and any state department of taxation, as applicable) of each state in which 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 Effectthe State of California;
(viiviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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 the officers of the Borrower Representative then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion Continuation and Notices of ContinuationConversion;
(viiiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such 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 (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) evidence of the insurance required under Section 8.5;
(x) a certificate copy of the Purchase Agreements and the Bosa Contract, certified and true, correct and complete by a senior officer 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 AgreementRepresentative;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019Bosa Collateral Assignment executed by the Borrowers;
(xii) a Disbursement Instruction Agreement effective as UCC, tax, judgment and lien search reports with respect to the Borrowers in all necessary or appropriate jurisdictions and under all legal and appropriate trade names indicating that there are no Liens of record on the Acquisition Property, the Bosa Contract or any of the Agreement Dateother assets of the Borrowers other than Permitted Liens or Liens to be terminated prior to the Borrower’s acquisition of the Acquisition Property;
(xiii) a copy of the title pro forma pursuant to which ALTA Owner’s Policies of Title Insurance relating to the Acquisition Property will be issued showing fee simple title being vested (subject to satisfaction of conditions acceptable to the Agent) in the Borrowers and all matters of record;
(xiv) copies of all documents of record reflected in Schedule B of such pro formas;
(xv) a current survey of the Acquisition Property certified by a surveyor licensed in the jurisdiction where the Acquisition Property is located to have been prepared in accordance with the then effective Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys, and if not adequately covered by the survey certification, evidence that the Fees Acquisition Property is not located in a Special Flood Hazard Area as defined by the Federal Insurance Administration;
(including, xvi) a “Phase I” environmental assessment of the Acquisition Property not more than 12 months old prepared by an environmental engineering firm acceptable to the extent then dueAgent, upon which the Agent and the Lenders are entitled to rely, and any additional environmental studies or assessments available to a Borrower performed with respect to the Acquisition Property;
(xvii) an escrow instructions closing letter among the Agent, the “Fees” Borrowers and the title insurance company regarding the consummation of the transactions contemplated by the Purchase Agreements;
(under and as defined in xviii) the Existing Credit Agreement) and interest under the Existing Credit Agreement accrued through the Effective Date), if any, Fees then due and payable under Section 3.53.6., together with, and any other Fees payable to the extent a reasonably detailed invoice has been delivered to Agent and the Borrower Lenders on or 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 fees and expenses of counsel to the Administrative Agent, have been paidEffective Date;
(ixix) all documentation and other information regarding a copy of the Borrower requested fully-executed limited waiver letter relating to the OP Credit Agreement entered into in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrowerthis Agreement; and
(xvxx) such other documents 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) In the good faith and reasonable judgment of the Administrative AgentAgent and the Lenders:
(i) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries Borrowers or the Guarantors delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (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;
(iii) the Borrower and the other The Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which 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
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the 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 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) if to the extent requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereofLenders, Revolving Credit Notes executed by the Borrower, payable to each Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, Section 2.11(a) and a Term Loan Note executed made by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, of Section 2.11(a2.10(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1initially to be a party thereto;
(iv) an opinion of Heach of (A) ▇▇▇▇▇▇ Lovells & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan PartiesParties and (B) ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Maryland counsel to Spirit REIT, addressed to the Administrative Agent and the Lenders and in form and substance covering the matters reasonably satisfactory to required by the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor issued as of a date not earlier than fifteen (15) days prior to the Effective Date Loan Party by the Secretary of State (or equivalent Governmental Authority) of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates Loan Party issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which 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 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, 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) evidence of a Compliance Certificate calculated on a pro forma basis for the insurance required under Section 8.5Borrower’s fiscal quarter ending September 30, 2022;
(x) a certificate of the completed 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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement Administrative Questionnaire effective as of the Agreement Date;
(xi) [reserved];
(xii) copies of all Material Contracts and confirmations relating to Specified Derivatives Contracts in existence on the Agreement Date;
(xiii) the Fee Letter;
(xiv) evidence 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including, without limitation, including the reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xv) such UCC, tax, judgment and lien search reports with respect to each Loan Party in its jurisdiction of organization indicating that there are no liens of record other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; andthan Permitted Liens.
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) 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;
(iic) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) the Borrower and 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 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
(ivi) 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 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(a2.11.(a) at least three (3) days prior to the date hereof, Revolving Credit Notes executed by the Borrower, payable to each Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, Section 2.11(a2.11.(a) and 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(a2.11.(a);
(iii) the Guaranty executed by the Parent 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 the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a 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 (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the Existing Original Credit Agreement or the Original Term Loan Agreement has not been modified or amended and remains in full force and effect, a certificate of the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be delivered in lieu of delivery of a current certified copy of such document);
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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 Original Credit Agreement or the Original Term Loan Agreement has not been modified or amended and remains in full force and effect, a certificate so stating may be delivered in lieu of delivery of another copy of such document) and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) evidence of the insurance required under Section 8.5.;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30December 31, 20192015;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence that the Fees (including, to the extent then due, (A) the “Fees” (under and as defined in the Existing Original Credit Agreement) and interest under the Existing Original Credit Agreement accrued through the Effective Date and (B) the “Fees” (under and as defined in the Original Term Loan Agreement) and interest under the Original Term Loan Agreement accrued through the Effective Date), if any, then due and payable under Section 3.5., together 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 fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xvxiv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with 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 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) 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 Revolving Credit applicable Lender (other than any Lender that has requested that it not receive a Revolving Credit Note, ) and complying with the terms of, of Section 2.11(a) and 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(a2.8.(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary other Guarantors identified in Schedule 1.1initially to be a party thereto;
(iv) an opinion of H▇▇▇▇ Lovells LLP, legal counsel to the Borrower and the other Loan Parties, reasonably satisfactory to the Administrative Agent, addressed to the Administrative Agent and the Lenders and covering the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit G;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, requests for Letters of Credit, Borrowing and Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such 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) evidence of a Compliance Certificate calculated on a pro forma basis for the insurance required under Section 8.5Parent's fiscal quarter ending June 30, 2012;
(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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixi) all documentation if required by the Administrative Agent, insurance certificates, or other evidence, providing that the insurance coverage required under Section 7.5. (including, without limitation, both property and other information regarding the Borrower requested liability insurance) is in connection with applicable “know your customer” full force 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; andeffect;
(xvxii) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, 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 their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) no 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;
(iii) the Parent, the Borrower and the other Loan Parties their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby 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; 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;
(iv) the Parent, the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “"know your customer” " and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(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) 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 Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, of Section 2.11(a) and 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(a2.9.(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Parent and each Material Subsidiary Guarantors identified in Schedule 1.1(other than an Excluded Subsidiary or a Foreign Subsidiary) existing as of the Effective Date;
(iv) an opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (if any) of each Loan Party certified (x) 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 and (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 y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be delivered in lieu Loan Party as being a true, correct and complete copy thereof as of delivery of a current certified copy of such document)the Agreement Date;
(viv) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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 BorrowingConversion, requests for Notices of Continuation and 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 (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;
(ixviii) evidence an opinion of counsel to the insurance required under Section 8.5Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit H;
(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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiiix) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ix) all documentation a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and other information regarding the Borrower requested use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) with respect to each Property identified on Schedule 4.1., each of the items referred to in Section 4.1.(b)(i), (ii), (iv) and (vi) required to be delivered in connection with applicable “know your customer” any Unencumbered Borrowing Base Property and anti-money laundering rules and regulations, including the Patriot Act, and (ii) a pro forma operating budget for such Property with respect to the extent current fiscal year;
(xii) a Transfer Authorizer Designation Form effective as of the Borrower qualifies as a “legal entity customer” Agreement Date;
(xiii) insurance certificates, or other evidence, providing that the insurance coverage required under the Beneficial Ownership RegulationSection 8.5. (including, a Beneficial Ownership Certification without limitation, both property and liability insurance) is in relation full force and effect;
(xiv) an Appraisal for each Property addressed to the BorrowerAdministrative Agent and otherwise in form and substance reasonably acceptable to the Administrative Agent; and
(xv) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(iii) the Parent, the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby 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
, 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. The provisions of clauses (iv) through (viii) of the Borrower and each other Loan Party 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) 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 Revolving Credit applicable Lender (other than any Lender that has requested that it not receive a Revolving Credit Note, ) and complying with the terms of, of Section 2.11(a2.10.
(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary other Guarantors identified in Schedule 1.1initially to be a party thereto;
(iv) an opinion of H▇▇▇▇ Lovells LLP, legal counsel to the Borrower and the other Loan Parties, reasonably satisfactory to the Administrative Agent, addressed to the Administrative Agent and the Lenders and covering the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit H;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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) evidence of a Compliance Certificate calculated on a pro forma basis for the insurance required under Section 8.5Parent’s fiscal quarter ending December 31, 2011;
(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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixi) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixii) all documentation if required by the Administrative Agent, insurance certificates, or other evidence, providing that the insurance coverage required under Section 7.5. (including, without limitation, both property and other information regarding the Borrower requested liability insurance) is in connection with applicable “know your customer” full force 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; andeffect;
(xvxiii) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, 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 their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) no 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;
(iii) the Parent, the Borrower and the other Loan Parties their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby 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; 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;
(iv) the Parent, the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(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) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Notes A Note executed by the Borrower, payable to each Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, Section 2.11(a) and 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(a2.11.(a);
(iii) the Guaranty executed by the Parent 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 the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a 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 (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the Existing “Original Credit Agreement 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 of the Borrower and the Parent Guarantor Loan Party issued as of a date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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 “Original Credit Agreement 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) evidence of the insurance required under Section 8.5.;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 20192012;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xvxiv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with 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 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) 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 Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, Section 2.11(a) and a Term Loan The Note executed by the Borrower, payable to each applicable Term Loan the Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a)applicable provisions of this Agreement;
(iii) the The Guaranty executed by the Parent each Guarantor and by each existing as of the Subsidiary Guarantors identified in Schedule 1.1Effective Date;
(iv) an An opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower and those Guarantor to which, together with the other Loan PartiesBorrower, at least 90.0% of Adjusted Asset Value is attributable, addressed to the Administrative Agent and the Lenders and Lenders, addressing the matters set forth in form and substance reasonably satisfactory to the Administrative Agent;Exhibit “D.”
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a 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 (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 A certificate of good standing (or certificate of similar meaning) meaning with respect to each of the Borrower and the Parent Guarantor such Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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;
(viivi) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each such Loan Party and a certificate of incumbency certifying that there have been no changes in the governing documents of such Loan Party since July 22, 2005 with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Credit 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, 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 (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) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence that the 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 3.53.4, together with, and any other Fees payable to the extent a reasonably detailed invoice has been delivered to Agent and the Borrower Lenders on or 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 fees and expenses of counsel to the Administrative Agent, have been paidEffective Date;
(iviii) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulationsA Compliance Certificate calculated as of March 31, including the Patriot Act, and 2006 (ii) giving pro forma effect to the extent financing contemplated by this Agreement and the Borrower qualifies as a “legal entity customer” under use of the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation proceeds of the Loan to be funded on the Borrower; andClosing Date);
(xvix) such Such other documents 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) In the good faith and reasonable judgment of the Administrative AgentAgent and the Lenders:
(i) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(ii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Credit Documents to which it is a party;
(iii) the The Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any material 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 Credit Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the 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 ActCredit Documents.
Appears in 1 contract
Sources: Credit Agreement (St Joe Co)
Initial Conditions Precedent. The obligation of the Lenders any Lender to effect or permit the occurrence of the first Credit Event hereundermake any Loan, whether as the making of a Loan or the issuance of a Letter of CreditSwingline Lender to make any Swingline Loan to Borrower, in each case is subject to the satisfaction or waiver of condition precedent that the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, each of which shall be satisfactory in form and substance satisfactory to the Administrative Agent:
(i) counterparts a counterpart of this Agreement executed by the Borrower and each of the parties heretoLenders;
(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 Revolving Credit Lender that has requested a Revolving Credit Note, of the Lenders and complying with the terms ofof Section 2.8., Section 2.11(a) and a Term Loan the Swingline 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)Swingline Lender;
(iii) the Guaranty executed by each Loan Party other than the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1Borrower;
(iv) an opinion the Pledge Agreement executed by each of H▇▇▇▇ Lovells LLPthe Borrower and each other Loan Party owning any equity interest in any other Loan Party, counsel substantially in the form of Exhibit L;
(v) the certificates issued in the name of the applicable Loan Party evidencing the stock and other securities subject to the Lien of the Pledge Agreement;
(vi) appropriate stock transfer powers endorsed in blank by each applicable Loan Party with respect to the certificates referred to in the immediately preceding subsection;
(vii) the Security Agreement executed by each of the Borrower and the other Loan Parties, addressed to Parties substantially in the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agentof Exhibit M;
(vviii) with respect to each of the Uniform Commercial Code financing statements naming each Loan Party as debtor, NationsBank as secured party, and filed pursuant to the Existing Credit Agreement, a Uniform Commercial Code assignment statement executed by NationsBank as assignor in favor of the Agent as assignee;
(ix) favorable UCC, tax and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions and under all legal and appropriate trade names indicating that there are no prior Liens on any of the Collateral other than Permitted Liens or Liens to be terminated prior to the Effective Date;
(x) an opinion of Trou▇▇▇▇ ▇▇▇d▇▇▇ ▇▇▇, counsel to the Loan Parties, in substantially the form of Exhibit N;
(xi) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership or other comparable organizational document instrument (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 State of formation of such Loan Party (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the Existing Credit Agreement has not been modified or amended and remains in full force and effect, a certificate of the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be delivered in lieu of delivery of a current certified copy of such document)Party;
(vixii) a certificate Certificate of good standing (Good Standing or certificate of similar meaning) meaning with respect to each of the Borrower and the Parent Guarantor 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 State of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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;
(viixiii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, party and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of CreditConversion, Notices of Conversion Continuation and Notices of ContinuationSwingline Borrowing;
(viiixiv) 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 (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 (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) evidence of the insurance required under Section 8.5;
(xxv) a certificate executed by the chief executive officer or chief financial officer 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 as of September 30Borrower, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(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, 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 fees and expenses of counsel to the Administrative Agent, have been paid;
stating that: (i) all documentation on such date, and other information regarding after giving effect to the Borrower requested in connection with applicable “know your customer” transactions contemplated hereby, no Default or Event of Default has occurred and anti-money laundering rules and regulations, including the Patriot Act, is continuing 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) such other documents representations and instruments as the Administrative Agent, warranties made 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;
(ii) 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 deemed made by the Borrower or any other Loan Party to fulfill its obligations under in the Loan Documents to which it is a partyare true and correct in all material respects on and as of such date with the same effect as though made on and as of such date;
(iiixvi) certificates of insurance evidencing the existence of all insurance required to be maintained by each Loan Party pursuant to the Loan Documents, together with loss payable clauses as required by such Loan Documents;
(xvii) a key man life insurance policy on the life of Rami▇ ▇. ▇▇▇▇▇, ▇.D., in the amount of $2,500,000, naming the Borrower as beneficiary;
(xviii) copies of all executed Management Services Agreements;
(xix) the Borrower Collateral Assignment of Management Services Agreements executed by PSC Management and each Other Manager, if any, relating to all such Management Services Agreements;
(xx) the other Loan Parties shall have received all approvalsFees, consents and waiversif any, 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 then due under Section 3.6.;
(Axxi) 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
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender financial statements described in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot ActSection 6.1.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) 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 Revolving Credit requesting Lender that has requested a Revolving Credit Note, and complying with the terms of, of Section 2.11(a2.12.
(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1intentionally omitted;
(iv) intentionally omitted;
(v) an opinion of H▇▇▇▇▇ Lovells US LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance covering the matters reasonably satisfactory to requested by the Administrative Agent;
(vvi) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vivii) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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 (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) evidence of the insurance required under Section 8.5;
(x) a certificate of Compliance Certificate calculated on a pro forma basis for 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 AgreementParent’s fiscal year ended December 31, 2020;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019intentionally omitted;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) intentionally omitted;
(xiv) intentionally omitted;
(xv) the Fee Letter;
(xvi) 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, to the extent a reasonably detailed invoice thereof has been delivered presented to the Borrower prior to the date hereofEffective 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, including without limitation, the reasonable and documented out-of-pocket fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xvxvii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) 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;
(iic) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (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;
(iiid) the Borrower and 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 material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which 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
(ivi) 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
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 hereofRevolving Notes, Revolving Credit Term Notes and Bid Rate Notes executed by the BorrowerBorrowers, payable to each Revolving Credit applicable Lender (including any Designated Lender, if applicable), other than any Lender that has requested a Revolving Credit Note, that it not receive Notes and complying with the terms of, of Section 2.11(a2.12.
(a) and a Term Loan Note the Swingline Notes executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a)Borrowers;
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1Guarantor;
(iv) an opinion or opinions of H▇▇▇▇ Lovells LLP, counsel to the Borrower Borrowers and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit N;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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 BorrowerBorrower Representative, authorized to execute and deliver on behalf of the each Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and Conversion, Notices of Continuation, Bid Rate Quote Requests and Bid Rate Quote Acceptances;
(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’s by-laws, 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) evidence of a Compliance Certificate for the insurance required under Section 8.5Parent calculated on a pro forma basis for the Parent’s fiscal quarter ended September 30, 2017;
(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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixi) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixii) all documentation the address of each Property subject to a Mortgage listed on Schedule 1.1 and such other information regarding as reasonably requested by the Borrower requested in connection Administrative Agent or any Lender to complete its flood due diligence with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) respect to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrowersuch Properties; and
(xvxiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender (through the Administrative Agent), may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower Parent and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which 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 any Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) the each 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.
Appears in 1 contract
Sources: Credit Agreement (Sl Green Operating Partnership, 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, 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) 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 Revolving Credit applicable Lender that has requested a Revolving Credit Notethat it receive Notes prior to the Effective Date, and complying with the terms of, of Section 2.11(a) and 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(a2.12.(a);
(iii) the Guaranty executed by the Parent 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 the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to covering such matters as the Administrative Agent;Agent may reasonably request; Execution Version
(viv) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(viv) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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 (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) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiiviii) 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, 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 out‑of‑pocket fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xvix) 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 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 Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(iic) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (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;
(iiid) the Borrower and 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 material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (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
(ive) 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) 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 Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, of Section 2.11(a) 2.11. and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor Parent, and by each any other Person that would be required under Section 8.14. to become a party to the Guaranty as of the Subsidiary Guarantors identified in Schedule 1.1Effective Date;
(iv) an opinion of H▇▇▇▇ Lovells LLP, counsel to the Parent, the Borrower and and, unless otherwise agreed by the Agent with respect to a given Guarantor, each of the other Loan PartiesGuarantors that owns any Unencumbered Pool Property, addressed to the Administrative Agent and the Lenders and covering the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit J;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document 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 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 (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)Person;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to the Parent, the Borrower and each of the Borrower and the Parent Guarantor other Guarantors that owns any Unencumbered Pool Property issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a Loan Party such 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, 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 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 (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) evidence a Unencumbered Pool Certificate calculated as of the insurance required under Section 8.5Effective Date;
(x) a certificate of Compliance Certificate calculated on a pro forma basis for 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 AgreementParent's fiscal quarter ended September 30, 2001;
(xi) a Compliance Certificate dated 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 Date and calculated as of September 30, 2019next eight fiscal quarters;
(xii) a Disbursement Instruction Agreement effective as copy of the Agreement DateExisting Credit Agreement, including all amendments thereto;
(xiii) evidence that the Fees Fleet Assignment Agreement executed and delivered by the parties thereto;
(including, to xiv) the extent then due, the “Fees” copies (under and or originals if available) of each outstanding Note (as defined in the Existing Credit Agreement) and interest under held by any Lender (as defined in the Existing Credit Agreement) that is not also a Lender under this Agreement accrued through (and in the Effective Date)case of originals, if any, then due and payable under Section 3.5, together with, duly endorsed 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 order of the Lenders, including, without limitation, the reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid▇▇▇▇▇ Fargo);
(ixv) copies of each of the New York Collateral Documents, including all amendments thereto, showing all recording information thereon certified as true, correct and complete by an authorized officer of the Parent;
(xvi) assignments of each of the New York Collateral Documents executed by the Existing Agent, such assignments relating to the applicable Mortgages to be substantially in the form of Exhibit L (each a "Mortgage Assignment");
(xvii) modifications to each of the New York Collateral Documents executed by the applicable Loan Parties, such modifications relating to the applicable Mortgages to be substantially in the form of Exhibit M (each a "Mortgage Modification");
(xviii) all documentation and other information regarding documents necessary in the Borrower requested sole discretion of the Agent to release any Liens created in connection with applicable “know your customer” and anti-money laundering rules and regulationswith, including or otherwise securing any obligations of any Loan Party owing in connection with, the Patriot ActExisting Credit Agreement, and other than the New York Collateral Documents;
(iixix) copies of each environmental assessments reports on the Properties subject to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation New York Collateral Documents available to the Borrower, together with reliance 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
(xvxxi) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and.
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(ii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(iii) the The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation -34- 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
, 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 (iv1) 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) 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 and the Florida Borrower, payable to each Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms ofapplicable provisions of Section 2.10., Section 2.11(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by Holdings, each Subsidiary that owns or leases a Collateral Property as of the Effective Date and each Material Subsidiary Guarantors identified in Schedule 1.1(other than any Exempt Subsidiary) as of the Effective Date;
(iv) an opinion or opinions of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and Lenders, addressing the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit H;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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 BorrowingBorrowings, requests for Letters Notices of Credit, Continuation and 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 (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 (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) evidence a certificate from a Responsible Officer of the insurance required under Section 8.5Borrower 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 certificate evidence of the Borrower 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 Parent Guarantor certifying that Lenders on or prior to the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this AgreementEffective Date;
(xi) a Compliance Borrowing Base Certificate dated calculated as of the Agreement Date and calculated as of September 30, 2019Effective Date;
(xii) a Disbursement Instruction Agreement effective Compliance Certificate calculated as of June 30, 2006 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xiii) evidence that letters from the Fees (including, to the extent then due, the “Fees” (administrative agent under and as defined in the Existing Credit Agreement) and interest under the each Existing Credit Agreement accrued through providing information regarding the Effective Date), if any, then due payment in full of amounts outstanding under such Existing Credit Agreement and payable under Section 3.5, together with, to providing for the extent a reasonably detailed invoice has been delivered to termination thereof and the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paidobligations owing thereunder;
(ixiv) all documentation of the items required to be delivered under Sections 4.1. and other information regarding the Borrower requested in connection 4.2. with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) respect 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; andeach Property identified on Schedule 4.1.;
(xv) such other documents 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) In the good faith and reasonable judgment of the Administrative AgentAgent and the Lenders:
(i) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(ii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to 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;
(iii) Holdings, the Borrower and 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 material 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
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
(c) When all of the conditions contained in the immediately preceding subsections (a) and (b) have been satisfied or waived in accordance with the terms hereof, the Agent shall promptly notify the Borrower and 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, 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) 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 each Borrower, payable to each Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, of Section 2.11(a) and 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(a2.8(a);
(iii) An opinion of Suth▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇ren▇▇▇ ▇▇▇, counsel to the Guaranty executed by Borrower, addressed to the Parent Guarantor Managing Agent and by each the Lenders, in substantially the form of the Subsidiary Guarantors identified in Schedule 1.1Exhibit G;
(iv) an opinion The Articles of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) Incorporation of each Loan Party Borrower 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 State of formation of such Loan Party (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the Existing Credit Agreement has not been modified or amended and remains in full force and effect, a certificate of the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be delivered in lieu of delivery of a current certified copy of such document)Maryland;
(viv) a certificate of A good standing (or certificate of similar meaning) with respect to each 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 State of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which 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 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, 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 (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 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) evidence 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 Secretary of State of the insurance required under Section 8.5State of formation of each such Subsidiary;
(x) a certificate Copies certified by the Secretary or Assistant Secretary of each of SBIC and SSBIC (or other individual performing similar functions) of the Borrower by-laws of each of SBIC and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this AgreementSSBIC;
(xi) a Compliance Certificate dated as A copy of each of the Agreement Date documents, instruments and calculated 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 September 30, 2019the Company;
(xii) a Disbursement Instruction Agreement effective as Evidence that all insurance required to be maintained by the Company and the Subsidiaries under the terms of the Agreement DateLoan Documents is in effect, or a certificate of an officer of the Company to such effect;
(xiii) evidence that the 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, 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 fees and expenses of counsel to the Administrative Agent, have been paid3.6;
(ixiv) all documentation 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 by the Lenders;
(xv) Subordination agreements with respect to any intercompany Indebtedness of a Borrower or a Guarantor permitted by Section 9.2(a)(4);
(xvi) A pro-forma Compliance Certificate and other information regarding a pro-forma Borrowing Base Certificate of each Borrower, each calculated as of the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulationsfiscal quarter ending December 31, 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 Borrower1997; and
(xvxvii) such Such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through Managing Agent on behalf of the Administrative Agent, Lenders 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with 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 Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, Section 2.11(a) and a Term Loan Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1;
(iv) an opinion of H▇▇▇▇ Hogan Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a 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 (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 of the Borrower and the Parent Guarantor issued as of a date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which 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, 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) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement[intentionally omitted];
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30March 31, 20192023;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(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, 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 fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and;
(xv) evidence of the payoff of the outstanding amount of all term loans provided under the Five-Year Term Loan Agreement (as defined in the Existing Agreement);
(xvi) a copy of a duly executed amendment to the Capital One Term Loan Agreement, consistent with the modifications contemplated hereby;
(xvii) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with 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 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) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Notes A Note executed by the Borrower, payable to each Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, Section 2.11(a) and 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(a2.11.(a);
(iii) the Guaranty executed by the Parent 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 the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a 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 (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the Existing “Original Credit Agreement 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 of the Borrower and the Parent Guarantor Loan Party issued as of a date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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 “Original Credit Agreement 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) evidence of the insurance required under Section 8.5.;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 20192012;
(xii) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xvxiv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with 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 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) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Notes and Term Notes executed by the Borrower, payable to each Revolving Credit applicable Lender (other than any Lender that has requested that it not receive a Revolving Credit Note, ) and complying with the terms of, of Section 2.11(a2.11.
(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1Guarantors, if any, initially to be a party thereto;
(iv) an opinion of H▇▇▇▇▇▇▇▇ Lovells & Worcester LLP, and an opinion of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to covering such matters as the Administrative AgentAgent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable - 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 a 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, 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) evidence a Compliance Certificate calculated as of the insurance required under Section 8.5Effective Date on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2017;
(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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixi) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixii) a copy of all documentation Operating Agreements, all Ancillary Agreements, the Business Management Agreement, the Property Management Agreement, in each case certified as true, correct and other information regarding complete by the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to chief operating officer or chief financial officer of the Borrower; and
(xvxiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(iic) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (Ai) any Applicable Law or (Bii) 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, 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;
(ive) 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 effectiveness of this Agreement and 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, is hereunder are subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Lenders and the Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:Agent (acting at the written direction of the Lenders):
(i) counterparts Each Loan Document to be entered into on the Effective Date by a Loan Party, in each case duly executed and delivered by Responsible Officer of this Agreement executed by each of the parties heretoLoan Parties party thereto;
(ii) 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 Revolving Credit applicable Lender (other than any Lender that has requested a Revolving Credit Note, that it not receive Notes) and complying with the terms of, Section 2.11(a) and 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, of Section 2.11(a);
(iii) the Subsidiary Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1initially to be a party thereto;
(iv) an opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent[Reserved];
(v) [Reserved];
(vi) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vivii) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person 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 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 EffectParty;
(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 deliver, on behalf of the Borrower and Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viiiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such 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) evidence of the insurance required under Section 8.5;
(x) a certificate Compliance Certificate calculated as of the Borrower and Effective Date on a pro forma basis for the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this AgreementBorrower’s fiscal quarter ending September 30, 2025;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019[Reserved];
(xii) a Disbursement Instruction Agreement effective Uniform Commercial Code financing statements in proper form for filing with the applicable secretary of state naming each Loan Party as of the Agreement Datedebtor thereunder;
(xiii) copies of Uniform Commercial Code search reports listing all effective financing statements filed against each Loan Party, with copies of such financing statements;
(xiv) evidence 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 3.53.05, together with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative AgentAgent and of the Lender Advisors, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xv) such other documents a customary certificate, dated the Effective Date and instruments as the Administrative Agentsigned by an authorized officer of Borrower, 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 certifying that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could would reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a partyEffect;
(iiixvi) a copy of each of the Borrower Property Management Agreement and Business Management Agreement certified as true, correct and complete by the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence a Responsible Officer 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; andBorrower;
(ivb) [Reserved];
(c) [Reserved];
(d) [Reserved];
(e) [Reserved];
(f) [Reserved];
(g) 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, to the extent requested not less than five (5) Business Days prior to the Effective Date;
(h) at least five (5) Business Days prior to the Agreement Date, the Borrower shall deliver, on behalf of itself to the extent that it qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification to each Lender that so requests such a Beneficial Ownership Certification;
(i) the Agent shall have received evidence, in form and substance satisfactory to the Agent (acting at the written direction of the Lenders), that, as of the Effective Date, the organizational structure of Borrower and each Subsidiary of Borrower is as set forth on Schedule 5.1 attached hereto;
(j) since June 12, 2025, there shall not have occurred or exist any event or occurrence which would reasonably be expected to have a material adverse effect on the Debtors’ business, operations, properties, assets, condition (financial or otherwise) or liabilities, taken as a whole (other than events leading up to the Bankruptcy Cases and events that would reasonably be expected to result from the filing or commencement of the proceedings under chapter 11 of the Bankruptcy Code and the continuation and prosecution thereof, including any decline in business relationships, reputation, or financial performance resulting from the Chapter 11 filing), on the ability of the Debtors, taken as a whole, to perform their respective payment obligations under the Loan Documents (other than as a result of events leading up to and resulting from the commencement of the Bankruptcy Cases and the continuation and prosecution thereof), or the ability of the Agent and the Lenders to enforce their rights and remedies under the Loan Documents (provided, that any effects resulting from changes in general economic conditions, financial markets, industry conditions, or geopolitical events, except to the extent such effects have a materially disproportionate impact on the Borrower relative to similarly situated companies, shall not constitute a material adverse effect and no event shall constitute a material adverse effect to the extent such event is expressly addressed by the Milestones or permitted variances under Section 7.18(b));
(k) the Petition Date shall have occurred, and the Borrower and each Guarantor shall be a debtor and a debtor-in-possession;
(l) the Restructuring Support Agreement shall be in full force and effect and shall not have been amended or modified in a manner that is materially adverse to the Agent or Lenders without the prior written consent of the Requisite Lenders;
(i) the Interim DIP Order shall have been entered by the Bankruptcy Court and shall not have been reversed, amended, stayed, vacated, terminated or otherwise modified in any manner that is materially adverse to the Agent or Lenders without the prior written consent of the Agent and the Requisite Lenders and (ii) no motion for reconsideration of the Interim DIP Order shall have been timely filed by any Debtor or any Subsidiary thereof;
(n) the Agent and the Lenders shall have received a copy of the Approved Budget, certified by a Responsible Officer of the Borrower, and in form and substance reasonably satisfactory to the Requisite Lenders;
(o) all proposed “first day orders” and motions to be filed at the time of commencement of the Bankruptcy Cases or shortly thereafter shall have been reviewed in advance by the Requisite Lenders or their counsel and shall be in form and substance reasonably satisfactory to the Requisite Lenders;
(p) no trustee, examiner, or receiver shall have been appointed or designated with respect to the Debtors’ business, properties or assets which, if granted, would result in a person other than the Debtors exercising control over the Debtors’ assets;
(q) all “first day” orders entered by the Bankruptcy Court pertaining to cash management and adequate protection and all motions and documents filed in connection therewith, shall be in form and substance reasonably acceptable to the Requisite Lenders;
(r) all fees and expenses (including, without limitation, legal fees and expenses) payable under this Agreement or otherwise to be paid to the Agent and the Lenders, including the Lender Advisors, on or before the Effective Date shall have been paid;
(s) the DIP Order, upon entry thereof and subject to the terms thereof, shall be effective to create in favor of the Agent, for the benefit of the Secured Parties, legal, valid, enforceable, perfected and (if applicable) unavoidable Liens on and security interests in the Collateral as set forth in Section 6.02(l)(i) and Exhibit C to the DIP Order, and subject in all respects to Section 12.25. The Loan Parties shall have delivered UCC financing statements, in suitable form for filing with the applicable secretary of state, and shall have made arrangements for the filing thereof with the applicable secretary of state and for the recording of the DIP Order with the applicable local real property recording offices, in each case, that are reasonably acceptable to the Requisite Lenders; and
(t) the Borrower shall have established the Segregated Account. The Lenders shall notify the Borrower and the Agent of the occurrence of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived), and such notice shall be conclusive and binding evidence of the occurrence thereof.
Appears in 1 contract
Sources: Secured Debtor in Possession Term Loan Credit Agreement (Office Properties Income Trust)
Initial Conditions Precedent. The obligation of the Lenders 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) 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 Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, Section 2.11(a) and a Term Loan The 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, provisions of Section 2.11(a)2.8.;
(iii) the Guaranty The Pledge Agreement duly executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1Borrower;
(iv) an opinion of H▇▇▇▇ Lovells LLP, counsel to The Control Agreement duly executed by the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative AgentCustodian;
(v) A list prepared by the certificate or articles Custodian of incorporation or formationall Investments, articles cash and Cash Equivalents of organizationthe Borrower, certificate of limited partnership or other comparable organizational document (if any) of in each Loan Party certified case, then held by the Custodian, such list to be as of a date not earlier no more than fifteen (15) 2 days prior to the Effective Date 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, addressed to the Lender, addressing the matters set forth in Exhibit G;
(ix) The Certificate of Trust of the Borrower certified as of a recent date by the Secretary of State of Delaware;
(x) A certificate of legal existence or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of such Loan Party (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the Existing Credit Agreement has not been modified or amended and remains in full force and effect, a certificate of the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be delivered in lieu of delivery of a current certified copy of such document);
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor issued as of a date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person 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 a 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, 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 (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) 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) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement A Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixiv) 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, The Fee then due and payable under Section 3.53.3., together with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paidLender;
(ixv) all documentation and other information regarding A UCC-1 financing statement to be filed in the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including office of the Patriot Act, and (ii) to Secretary of State of the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the BorrowerState of Delaware; and
(xvxvi) such Such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative AgentLender:
(i) there 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;
(ii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (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;
(iii) the The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any material 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
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the 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 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 and Bid Rate Notes executed by the Borrower, payable to each Revolving Credit all Lenders (other than any Lender that has requested that it not receive a Revolving Credit Note) and any Designated Lender, if applicable, and complying with the terms of, of Section 2.11(a2.12.
(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1initially to be a party thereto;
(iv) an opinion of H▇▇▇▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan PartiesGuarantors, and addressed to the Administrative Agent Agent, the Issuing Bank and the Lenders and covering the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit N;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Person;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person 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 a Loan Party such 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, 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 (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 Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiix) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2011;
(xi) evidence that all indebtedness, liabilities or obligations owing by the Fees (including, to the extent then due, the “Fees” (under and as defined in the Existing Credit Agreement) and interest Loan Parties under the Existing Credit Agreement accrued through shall have been paid in full and all commitments to make loans and/or provide other financial accommodations thereunder have terminated;
(xii) evidence that the Effective Date)Fees, if any, then due and payable under Section 3.53.6., together with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xvxiii) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(ii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby 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, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iv) the 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 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: 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) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereofRevolving Notes, Revolving Credit Term Notes, Bid Rate Notes and Swingline Notes executed by the Borrower, payable to each Revolving Credit applicable Lender (including any Designated Lender, if applicable but excluding any Lender that has requested a Revolving Credit Note, that it not receive Notes) and complying with the terms of, of Section 2.11(a) and 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(a2.12.(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1initially to be a party thereto;
(iv) an opinion of H▇▇▇▇ Lovells LLP, legal counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to covering such customary matters as may be required by the Administrative Agent;
(v) copies of the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, currently authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion 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) evidence of a Compliance Certificate calculated on a pro forma basis for the insurance required under Section 8.5Borrower’s fiscal quarter ending June 30, 2018;
(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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixi) evidence that all indebtedness, liabilities or obligations owing by the Loan Parties under the Existing Agreement shall have been paid in full and all commitments, if any, thereunder have been terminated;
(xii) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xvxiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(iic) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) 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, 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;
(ive) 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 Patriot Act;
(f) at least five (5) days prior to the Agreement Date, if Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, then Borrower shall deliver to the Administrative Agent a Beneficial Ownership Certification; and
(g) 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) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Notes and Bid Rate Notes executed by the Borrower, payable to each Revolving Credit applicable Lender that has requested a Revolving Credit Note(including any Designated Lender, if applicable) and complying with the terms of, of Section 2.11(a2.11.
(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1Guarantors, if applicable, initially to be a party thereto;
(iv) an opinion of HPillsbury ▇▇▇▇▇▇▇▇ Lovells ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit O;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated as of calculated on a pro forma basis for the Agreement Date and calculated as of September 30Borrower’s fiscal quarter ending March 31, 2019;
(xiix) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixi) [intentionally omitted];
(xii) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the LendersArrangers, including, including without limitation, the reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xvxiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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, 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;
(iv) 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) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, The Revolving Credit Notes executed by Note and the Borrower, payable to each Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, Section 2.11(a) and 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, provisions of Section 2.11(a)2.8.;
(iii) The Security Agreement executed by Borrower and the Guaranty Subsidiary Security Agreement executed by the Parent Guarantor and Domestic Material Subsidiaries together with (i) such UCC-1 financing statements as may be reasonably required by each 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 Guarantors identified in Schedule 1.1;Security Agreement and (ii) a Perfection Certificate executed by Borrower.
(iv) an The Guaranty executed by each Domestic Material Subsidiary existing as of the Effective Date;
(v) The Pledge Agreement executed by the 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 H▇▇▇▇ Lovells LLP, outside counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and Lender, addressing the Lenders and matters set forth in form and substance Exhibit D, the content of which shall be reasonably satisfactory to the Administrative AgentLender;
(vix) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership or other comparable organizational document instrument (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 jurisdiction of formation of such Loan Party (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the Existing Credit Agreement has not been modified or amended and remains in full force and effect, a certificate of the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be delivered in lieu of delivery of a current certified copy of such document)Party;
(vix) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each of the Borrower and the Parent Guarantor 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 jurisdiction of formation of each such Person 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 a 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, 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 (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 (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) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence that the 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 3.53.3., together with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent and any Lender;
(xiv) A pro forma calculation showing compliance with the financial covenants set forth in Section 9.1. hereof, calculated as of the LendersMarch 31, including2005, without limitation, the which shall include a reasonable and documented estimate of fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested incurred in connection with applicable “know your customer” this Agreement and anti-money laundering rules and regulations, including which shall include in Consolidated Total Senior Funded Debt the Patriot Act, and (ii) principal amount of Indebtedness owed to the extent Junior Lenders that will be refinanced by proceeds of the Borrower qualifies as a “legal entity customer” under Revolving Credit Loans on the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; andEffective Date.
(xv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment A commitment for a lender's policy of title insurance insuring each of the Administrative Agent:
(i) there shall not have occurred or become known Mortgages and the parcels of real property described therein, in such form and with such coverage endorsements, without standard exceptions and containing only those exceptions which are reasonably acceptable to the Administrative Agent or any Lender, with evidence of the Lenders any event, condition, situation or status since the date payment 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 Effectpremium therefor;
(iixvi) no litigationA recent ALTA land survey of each parcel of real property described in the Mortgages, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened and evidence satisfactory to the Lender 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 its sole discretion that none of the Borrower real property described in the Mortgages lies in an area requiring special notices of flood hazard issues or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) evidence that the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.has purchased flood hazard insurance;
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 and Bid Rate Notes executed by the Borrower, payable to each Revolving Credit applicable Lender that has requested a Revolving Credit Note(including any Designated Lender, if applicable) and complying with the terms of, of Section 2.11(a2.11.
(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1Guarantors, if applicable, initially to be a party thereto;
(iv) an opinion of H▇▇▇▇▇▇▇▇▇ Lovells ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit O;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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) evidence of a Compliance Certificate calculated on a pro forma basis for the insurance required under Section 8.5Borrower’s fiscal quarter ending June 30, 2022;
(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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixi) [intentionally omitted];
(xii) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the LendersArrangers, including, including without limitation, the reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xvxiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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, 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;
(iv) 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 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) 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 Revolving Credit Lender that has (if requested a Revolving Credit Note, by such Lender) and complying with the terms of, applicable provisions of Section 2.11(a) and 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)2.12.;
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1[Reserved];
(iv) an opinion Opinions of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and the Swingline Lender, addressing the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit F;
(v) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership or other comparable organizational document instrument (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 (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)Party;
(vi) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, requests for Borrowing and 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 (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 (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) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence 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 3.53.6., together with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable Titled Agents and documented fees 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;
(ix) all documentation and other information regarding A Compliance Certificate to be calculated based on the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulationsfinancial statements for the period ending as of September 30, including the Patriot Act2018, and (ii) after giving pro forma effect to the extent financing contemplated by this Agreement and the Borrower qualifies as a “legal entity customer” under use of the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation proceeds of any Loans to be funded on the Borrower; andEffective Date;
(xvxi) such [reserved];
(xii) Such other documents 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) In the good faith and reasonable judgment of the Administrative Agent:
(i) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(iic) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (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;
(iiid) the Borrower The Trust and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any material 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 (ivA) 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;
(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 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; and
(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.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of CreditLoan, is subject to the 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 Revolving Credit applicable Lender that has requested a Revolving Credit Notethat it receive Notes, and complying with the terms of, of Section 2.11(a) and 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(a2.12.(a);
(iii) the Guaranty executed by each Subsidiary Guarantor, the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1other Required Guarantor;
(iv) [reserved];
(v) an opinion letter of H▇▇▇▇▇▇ Lovells LLPLLP and ▇▇▇▇▇▇▇ LLP (with respect to Maryland law matters), counsel to the Borrower and the other Loan Parties, Parties addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory acceptable to the Administrative Agent;
(vvi) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vivii) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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 (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) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement[reserved];
(xi) a Compliance Certificate dated as evidence of property, business interruption and liability insurance covering each Eligible Property in form and substance reasonably acceptable to the Agreement Date Administrative Agent, and calculated as if requested by the Administrative Agent, copies of September 30, 2019such insurance policies;
(xii) [reserved];
(xiii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 6.1.(b) through (d) 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 31, 2023;
(xv) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixvi) a copy of an amendment to the WF Term Loan Agreement, duly executed by the parties thereto and effective on or prior to the Effective Date, and evidence that all conditions precedent thereto have been satisfied;
(xvii) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixviii) copies of all documentation and other information regarding Specified Derivatives Contracts in existence on the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the BorrowerAgreement Date; and
(xvxix) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(iic) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) the Borrower and 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 material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which 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
(ive) the Borrower and each other Loan Party shall have provided delivered, on behalf of itself and any Loan Party, to each Lender that so requests a Beneficial Ownership Certification at least five (5) days prior to the Effective Date, and 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.
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 Revolving Credit applicable Lender that has requested a Revolving Credit Note, and complying with the terms of, of Section 2.11(a2.10.
(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
; (iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1;
initially to be a party thereto; (iv) an opinion of HPillsbury ▇▇▇▇▇▇▇▇ Lovells ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Parent, the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in a form and substance reasonably satisfactory acceptable to the Administrative Agent;
; (v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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);
Party; (vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person 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 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, 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) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(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, 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 fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; andof
(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;
; (ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with 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 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) 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 Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, of Section 2.11(a2.7.(a) and a Term Loan complying with the terms of Section 2.7.
(a) and the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1initially to be a party thereto;
(iv) an opinion of Hthe Borrower’s general counsel and ▇▇▇▇▇▇▇ Lovells ▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan Parties, in each case addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to addressing such matters as the Administrative AgentAgent may request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a 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 (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 of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have owns a Material Adverse EffectHotel or any non-hotel real property asset;
(viivi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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 Borrower, Notices of Borrowing, Borrowing and Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viiivii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of such Loan Party, (B) the by-laws of such 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 (BC) 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) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2013;
(ix) evidence reasonably detailed projected financial statements of Apple REIT for the insurance required under Section 8.52014 and 2015 fiscal years (including projected balance sheets, statements of income and statements of cash flow) and setting forth the material underlying assumptions applicable thereto;
(x) a 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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixi) evidence that the a Notice of Borrowing requesting Revolving Loans in an amount equal to, or greater than, all 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable fees and documented expenses of counsel to the Administrative Agent;
(xii) [RESERVED];
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xvxiv) such other documents documents, agreements, instruments, credit applications, financial statements, authorizations and instruments such information concerning Apple REIT, the Borrower and its Subsidiaries and their respective businesses, operations and conditions (financial and otherwise) as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith 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, public filings with the U.S. Securities and Exchange Commission, budgets, pro forma data and forecasts concerning 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any Applicable Law 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, 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;
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA Patriot ActAct (Title III of Pub. L. 107-56 (signed into law October 26, 2001));
(v) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents;
(vi) all acts and conditions (including, without limitation, the obtaining of any necessary regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened precedent to the execution, delivery and performance of the Loan Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have happened in due and strict compliance with all applicable laws; and
(vii) all documentation, including, without limitation, documentation for corporate and legal proceedings in connection with the transactions contemplated by the Loan Documents shall be satisfactory in form and substance to the Administrative Agent and its counsel, and all legal and financial due diligence on the Borrower and the other Loan Parties and their operations and conditions shall be completed and shall be satisfactory to the Administrative Agent and the Lenders.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, 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) 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 Revolving Credit Lender that which has requested a Revolving Credit Note, Note and complying with the terms of, applicable provisions of Section 2.11(a) and 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)2.8;
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1Parent;
(iv) an opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership or other comparable organizational document instrument (if any) of the Borrower and each other 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 (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)Party;
(viv) a certificate of good standing (or certificate of similar meaning) meaning with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each the state in which a 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, 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 (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 (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) evidence of the insurance required Fees then due and payable under Section 8.53.6., and any other Fees payable to the Agent and the Lenders on or prior to the Effective Date;
(x) a certificate Compliance Certificate calculated as of the Borrower Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the Parent Guarantor certifying that use of the Properties identified in Schedule 4.1 satisfy proceeds of the requirements for inclusion in Loans to be funded on the Unencumbered Pool under this AgreementAgreement Date);
(xi) a Compliance Certificate dated as disbursement statement setting forth in reasonable detail the application of the Agreement Date and calculated as of September 30, 2019initial Loans being funded on the Effective Date;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(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, 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 fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xv) such other documents 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) In the good faith and reasonable judgment of the Administrative AgentAgent 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;
(ii) 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 (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
(iii) the Parent, the Borrower and the its other Loan Parties Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any material 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 (ivA) 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) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Notes and Term Notes executed by the Borrower, payable to each Revolving Credit applicable Lender that has requested a Revolving Credit Notethat it receive Notes and the Swingline Note executed by the Borrower payable to the Swingline Lender to the extent that it has requested that it receive Notes, and and, in each case, complying with the terms of, of Section 2.11(a) and 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(a2.12.(a);
(iii) the Guaranty executed by each Subsidiary Guarantor, the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1other Required Guarantor;
(iv) an opinion (i) the Pledge Agreement, executed by each of Hthe Parent, General Partner, ▇▇▇▇▇▇▇▇ Lovells and each Subsidiary Guarantor party thereto from time to time and (ii) each other Security Document, executed by the parties thereto;
(v) an opinion letter of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan Parties, Parties addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory acceptable to the Administrative Agent;
(vvi) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vivii) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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 (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) evidence of the insurance required under Section 8.5;
(x) a original stock certificates or other certificates evidencing the certificated Equity Interests, as applicable, pledged pursuant to the Security Documents, together with an undated stock power for each such certificate of duly executed in blank by 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 Agreementregistered owner thereof;
(xi) evidence of property, business interruption and liability insurance covering each Eligible Property, evidence of payment of all insurance premiums for the current policy year of each policy (with appropriate endorsements naming the Administrative Agent as lender’s loss payee on all policies for property hazard insurance and as additional insured on all policies for liability insurance), in each case, in form and substance reasonably acceptable to the Administrative Agent, and if requested by the Administrative Agent, copies of such insurance policies;
(xii) any other documents reasonably requested thereby or as required by the terms of the Security Documents to perfect or evidence its security interest in the Collateral;
(xiii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 6.1.(b) through (e) and Section 6.2. have been satisfied;
(xiv) a Compliance Certificate dated as of calculated on a pro forma basis for the Agreement Date and calculated as of Borrower’s fiscal quarter ending September 30, 2019;
(xiixv) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixvi) evidence that all indebtedness, liabilities or obligations owing by the Loan Parties under the Existing Credit Facilities shall have been paid in full and all Liens securing such indebtedness, liabilities or other obligations have been released;
(xvii) evidence that the Fees (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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixviii) copies of all documentation and other information regarding Specified Derivatives Contracts in existence on the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the BorrowerAgreement Date; and
(xvxix) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(iic) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) the Borrower and 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 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, 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;
(ive) 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) 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 Revolving Credit Lender (other than any Lender that has requested that it not receive a Revolving Credit Note, ) and complying with the terms of, of Section 2.11(a) and 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(a2.8.(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1initially to be a party thereto;
(iv) an opinion of H▇▇▇▇▇▇▇▇ Lovells & Worcester LLP, and opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit H;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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) evidence a Compliance Certificate calculated as of the insurance required under Section 8.5Effective Date on a pro forma basis for the Borrower’s fiscal quarter ended September 30, 2011;
(x) a certificate 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 Borrower and Loans initially are to be LIBOR Loans, the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this AgreementInterest Period therefor;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement Transfer Authorizer Designation Form 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xvxiv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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, 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;
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender may request in order to comply with 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) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Notes and Term Notes executed by the Borrower, payable to each Revolving Credit applicable Lender (other than any Lender that has requested that it not receive a Revolving Credit Note, ) and complying with the terms of, of Section 2.11(a2.11.
(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1Guarantors, if any, initially to be a party thereto;
(iv) an opinion of H▇▇▇▇▇▇▇▇ Lovells & Worcester LLP, and an opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to covering such matters as the Administrative AgentAgent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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) evidence a Compliance Certificate calculated as of the insurance required under Section 8.5Effective Date on a pro forma basis for the Borrower’s fiscal quarter ending September 30, 2013;
(x) a certificate of the Borrower and request for the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this AgreementTerm Loans required by Section 2.2.(b);
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xii) evidence that all indebtedness, liabilities or obligations owing by the Loan Parties under the Existing Term Loan Agreement shall have been paid in full and that all accrued and unpaid interest and fees owing by the Loan Parties under the Existing Credit Agreement shall have been paid in full;
(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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixiv) a copy of (y) all documentation Operating Agreements, all Ancillary Agreements, the Business Management Agreement, the Property Management Agreement, in each case certified as true, correct and other information regarding complete by the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including chief operating officer or chief financial officer of the Patriot ActBorrower, and (iiz) an Operating Agreement Abstract with respect to each Operating Agreement for the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the BorrowerUnencumbered Assets; and
(xv) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith 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;
(iic) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (Ai) any Applicable Law or (Bii) 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, 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;
(ive) 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: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) if to the extent requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereofeach Lender, Revolving Credit Notes and Terms Notes executed by the Borrower, payable to each Revolving Credit applicable Lender (but excluding any Lender that has requested a Revolving Credit Note, not to receive Notes) and complying with the terms of, of Section 2.11(a2.12(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1▇▇▇▇▇▇ ▇▇▇▇;
(iv) an opinion of H(A) ▇▇▇▇▇▇ Lovells & ▇▇▇▇▇▇▇ LLP, special counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form covering the matters reasonably required by Administrative Agent and substance (B) ▇▇▇▇▇▇▇ LLP, Maryland counsel to the Borrower and ▇▇▇▇▇▇ ▇▇▇▇, addressed to the Administrative Agent and the Lenders and covering the matters reasonably satisfactory to required by the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party 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 a 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, 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) evidence a Compliance Certificate calculated on a pro forma basis (taking into account the Unencumbered Pool Properties as of the insurance required under Section 8.5Agreement Date) for the Borrower’s fiscal quarter ending December 31, 2017;
(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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Effective Date;
(xi) intentionally omitted;
(xii) copies of all Material Contracts in existence on the Agreement DateDate not previously delivered to Administrative Agent;
(xiii) evidence that the Fees Fee Letter;
(including, to the extent then due, the “Fees” (under and as defined in the Existing Credit Agreementxiv) and interest under the Existing Credit Agreement accrued through the Effective Date), if any, then due and payable under Section 3.5, together 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 LendersLenders for which an invoice has been provided at least three (3) Business Days prior to the date hereof, including, without limitation, the reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (iixv) to the extent not previously delivered to Administrative Agent, at Administrative Agent’s request, insurance certificates, or other evidence, providing that the Borrower qualifies as 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) a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrowercomplete listing of all Subsidiaries which are not Guarantors; and
(xvxviii) such other documents evidence that all accrued and instruments as unpaid interest and fees owing by the Administrative AgentLoan Parties under the Existing Credit Facilities have been paid, or any Lender through in full, for which an invoice has been provided at least three (3) Business Days prior to the Administrative Agent, may reasonably request; anddate hereof.
(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 projectionsDecember 31, budgets2017, 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation, the USA 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:: LEGAL 4867-4266-3982v.3
(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 and Term Notes executed by the Borrower, payable to each Revolving Credit applicable Lender that has requested a Revolving Credit Notethat it receive Notes and the Swingline Note executed by the Borrower payable to the Swingline Lender to the extent that it has requested that it receive Notes, and and, in each case, complying with the terms of, of Section 2.11(a) and 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(a2.12.(a);
(iii) the Guaranty executed by each Subsidiary Guarantor, the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1other Required Guarantor;
(iv) an opinion (i) the Pledge Agreement, executed by each of Hthe Parent, General Partner, ▇▇▇▇▇▇▇▇ Lovells and each Subsidiary Guarantor party thereto from time to time and (ii) each other Security Document, executed by the parties thereto;
(v) an opinion letter of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan Parties, Parties addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory acceptable to the Administrative Agent;
(vvi) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vivii) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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 (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) evidence of the insurance required under Section 8.5;
(x) a original stock certificates or other certificates evidencing the certificated Equity Interests, as applicable, pledged pursuant to the Security Documents, together with an undated stock power for each such certificate of duly executed in blank by 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;registered owner thereof; LEGAL 4867-4266-3982v.3
(xi) evidence of property, business interruption and liability insurance covering each Eligible Property, evidence of payment of all insurance premiums for the current policy year of each policy (with appropriate endorsements naming the Administrative Agent as lender’s loss payee on all policies for property hazard insurance and as additional insured on all policies for liability insurance), in each case, in form and substance reasonably acceptable to the Administrative Agent, and if requested by the Administrative Agent, copies of such insurance policies;
(xii) any other documents reasonably requested thereby or as required by the terms of the Security Documents to perfect or evidence its security interest in the Collateral;
(xiii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 6.1.(b) through (e) and Section 6.2. have been satisfied;
(xiv) a Compliance Certificate dated as of calculated on a pro forma basis for the Agreement Date and calculated as of Borrower’s fiscal quarter ending September 30, 2019;
(xiixv) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixvi) evidence that all indebtedness, liabilities or obligations owing by the Loan Parties under the Existing Credit Facilities shall have been paid in full and all Liens securing such indebtedness, liabilities or other obligations have been released;
(xvii) evidence that the Fees (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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixviii) copies of all documentation and other information regarding Specified Derivatives Contracts in existence on the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the BorrowerAgreement Date; and
(xvxix) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(iic) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) the Borrower and 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 material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which 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; andLEGAL 4867-4266-3982v.3 (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;
(ivf) 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) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Notes and Bid Rate Notes executed by the Borrower, payable to each Revolving Credit applicable Lender (including any Designated Lender, if applicable), other than any Lender that has requested that it not receive a Revolving Credit Note, and complying with the terms of, of Section 2.11(a2.11.
(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1initially to be a party thereto;
(iv) an opinion of H▇▇▇▇▇ Lovells & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower Parent and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit O;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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) evidence of a Compliance Certificate calculated on a pro forma basis for the insurance required under Section 8.5Borrower’s fiscal quarter ending September 30, 2023;
(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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixi) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xvxii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(ii) 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 Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower Parent and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby 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, 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, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iv) the Borrower Administrative Agent and each other Loan Party 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 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) if to the extent requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereofLenders, Revolving Credit Notes executed by the Borrower, payable to each Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, Section 2.11(a) and a Term Loan Note executed made by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, of Section 2.11(a2.10(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1initially to be a party thereto;
(iv) an opinion of Heach of (A) ▇▇▇▇▇▇ Lovells & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan PartiesParties and (B) ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Maryland counsel to Spirit REIT, addressed to the Administrative Agent and the Lenders and in form and substance covering the matters reasonably satisfactory to required by the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor issued as of a date not earlier than fifteen (15) days prior to the Effective Date Loan Party by the Secretary of State (or equivalent Governmental Authority) of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates Loan Party issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which 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 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, 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) evidence of a Compliance Certificate calculated on a pro forma basis for the insurance required under Section 8.5Borrower’s fiscal quarter ending June 30, 2022;
(x) a certificate of the completed 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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement Administrative Questionnaire effective as of the Agreement Date;
(xi) [reserved];
(xii) copies of all Material Contracts and confirmations relating to Specified Derivatives Contracts in existence on the Agreement Date;
(xiii) the Fee Letter;
(xiv) evidence 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including, without limitation, including the reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xv) such UCC, tax, judgment and lien search reports with respect to each Loan Party in its jurisdiction of organization indicating that there are no liens of record other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; andthan Permitted Liens.
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) 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;
(iic) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) the Borrower and 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 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
(ivi) 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 effectiveness of this Agreement on the date hereof (and the obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the initial making of a Loan or the issuance of a Letter of CreditCredit on the date of such effectiveness, if any) is subject to the satisfaction or waiver of the following conditions precedent:
(a) : The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties Loan Party party hereto;
(ii) if to the extent requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereofrelevant Lender, Revolving Credit Notes executed by the BorrowerBorrowers, payable to each Revolving Credit applicable Lender that has requested a Revolving Credit Note, and complying with the terms of, of Section 2.11(a2.10(a) and a Term Loan the Swingline 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)Borrowers;
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1initially party thereto;
(iv) [intentionally omitted];
(v) an opinion of HWeil, Gotshal & ▇▇▇▇▇▇ Lovells LLP, counsel to the Borrower Borrowers and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance as to such matters as the Administrative Agent may reasonably satisfactory request;
(vi) an opinion of in-house counsel to the Loan Parties, addressed to the Administrative AgentAgent and the Lenders as to such matters as the Administrative Agent may reasonably request;
(vvii) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(viviii) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person 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 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 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 BorrowerBorrowers, authorized to execute and deliver on behalf of the Borrower Borrowers Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion 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 (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) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated Transfer Authorizer Designation Form effective as of the Agreement Date and calculated as of September 30, 2019Closing Date;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date[intentionally omitted];
(xiii) UCC, tax, judgment and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions; provided, the Administrative Agent hereby confirms that the search reports required by this clause (xiii) have been received;
(xiv) evidence 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 3.53.05, together withand, to the extent a reasonably detailed invoice has been delivered to the Borrower invoiced prior to the date hereofClosing Date, all other fees, expenses and reimbursement amounts due and payable to the Arranger, the Administrative Agent and any of the Lenders, including, without limitation, including the reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixv) [intentionally omitted];
(xvi) a certificate of the Chief Financial Officer of the Parent and the Partnership to the effect that (A) all documentation representations and warranties of the Loan Parties contained in this Agreement and the other information regarding the Borrower requested Loan Documents are true and correct, in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and all material respects (ii) except to the extent any representation and warranty is qualified by materiality or Material Adverse Effect, in which case such representation and warranty shall be true and correct in all respects), as of the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation Closing Date (except to the Borrower; and
extent such representations or warranties expressly relate to an earlier date (xvin which case such representations and warranties shall be true and correct on and as of such earlier date)), (B) such other documents and instruments upon giving effect to the transactions hereunder 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:
Closing Date, no Default or Event of Default has occurred and is continuing, (iC) there shall not have since December 31, 2012 no event or condition has occurred or become known to the Administrative Agent arisen, either individually or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsaggregate, 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;
(ii) 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 have a Material Adverse Effect or and (BD) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially all governmental and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all material third party approvals necessary filings and notices as shall be required to consummate in connection with the transactions contemplated hereby without and all material governmental and third party approvals necessary in connection with the occurrence continuing operations 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 boundthe Parent and its Subsidiaries shall have been obtained and be in full force and effect; and
(ivxvii) 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” 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 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) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Term Notes executed by the Borrower, payable to each Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, of Section 2.11(a) and 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)2.9.;
(iii) the Guaranty executed by the Parent Guarantor Parent, and by each any other Person that would be required under Section 8.14. to become a party to the Guaranty as of the Subsidiary Guarantors identified in Schedule 1.1Effective Date;
(iv) an opinion of H▇▇▇▇ Lovells LLP, counsel to the Parent, the Borrower and and, unless otherwise agreed by the Agent with respect to a given Guarantor, each of the other Loan PartiesGuarantors that owns any Unencumbered Pool Property, addressed to the Administrative Agent and the Lenders and covering the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit H;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document 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 date not earlier than fifteen (15) days prior acceptable to the Effective Date Agent by the Secretary of State of the state of formation of such Loan Party (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the Existing Credit Agreement has not been modified or amended and remains in full force and effect, a certificate of the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be delivered in lieu of delivery of a current certified copy of such document)Person;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to the Parent, the Borrower and each of the Borrower and the Parent Guarantor other Guarantors that owns any Unencumbered Pool Property issued as of a date not earlier than fifteen (15) days prior acceptable to the Effective Date Agent by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a Loan Party such 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, 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 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 (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) evidence a Unencumbered Pool Certificate calculated as of the insurance required under Section 8.5Effective Date;
(x) a certificate Compliance Certificate calculated on a pro forma basis for the Parent's fiscal quarter ended June 30, 2003;
(xi) 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 next eight fiscal quarters;
(xii) copies of each of the New York Collateral Documents, including all amendments thereto, showing all recording information thereon certified as true, correct and complete by an authorized officer of the Parent;
(xiii) assignments of each of the New York Collateral Documents executed by the Existing Lender, such assignments relating to the applicable Mortgages to be substantially in the form of Exhibit J (each a "Mortgage Assignment");
(xiv) modifications to each of the New York Collateral Documents executed by the applicable Loan Parties, such modifications relating to the applicable Mortgages to be substantially in the form of Exhibit K (each a "Mortgage Modification");
(xv) copies of each environmental assessments reports on the Properties subject to the New York Collateral Documents available to the Borrower, together with reliance letters from the environmental engineering firms performing such assessments addressed to the Agent and the Lenders;
(xvi) an Environmental Indemnity Agreement executed by the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion with respect to each Property subject to a New York Collateral Document, such agreement to be substantially in the Unencumbered Pool under this form of Exhibit L (each an "Environmental Indemnity Agreement;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(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, 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 fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xvxvii) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and.
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(ii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(iii) the The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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
, 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 (iv1) 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. 5.1.1 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 Agency's obligations under this Agreement are subject to the satisfaction or waiver condition precedent that it has confirmed to the Developer that it has received all of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative AgentAgency:
(ia) counterparts of this Agreement executed by each a certified copy of the parties heretoConstitutive Documents of the Developer;
(iib) if requested by any Lender pursuant to Section 2.11(aa certified copy of the Evidence of Incorporation of the Developer;
(c) at least three (3) days prior to a certified copy of a resolution of the date hereof, Revolving Credit Notes executed by board of the Borrower, payable to each Revolving Credit Lender that has requested a Revolving Credit Note, and complying with Developer: i approving the terms of, Section 2.11(a) and a Term Loan Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1;
(iv) an opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Partiestransactions contemplated by, addressed to the Administrative Agent relevant Finance Documents and Scheme Project Documents and resolving that it executes the Lenders relevant Finance Documents and in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a 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 (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 of the Borrower and the Parent Guarantor issued as of a date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which 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 Scheme Project Documents to which such Loan Party it is a party, and in ; ii authorising the case of the Borrower, authorized Developer Senior Officer or other specified person or persons to execute each relevant Finance Document and deliver Scheme Project Document to which it is a party on behalf of its behalf; iii authorising its seal to be affixed to those relevant Finance Documents and Scheme Project Documents to be executed by it under seal; and iv authorising the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (Developer Senior Officer or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Partyspecified person or persons, if a corporationon its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under, or in connection with, 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 relevant Finance Documents to which it is a party;
(ixd) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying Agency being satisfied that the Properties identified in Schedule 4.1 satisfy Developer has (and continues to have) sufficient funding (whether from its own resources or otherwise) to complete the requirements for inclusion in Scheme by the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Works Target Date;
(xiiie) evidence that a copy of the Fees Scheme Details;
(including, to the extent then due, the “Fees” f) counterparts of each Finance Document (under and as defined in the Existing Credit other than this Agreement) and interest under each Scheme Project Document executed by the Existing Credit Agreement accrued through Developer and each other party to each such document;
(g) certified copies of any deeds of release relating to all outstanding security interests granted by the Effective Date), if any, then due and payable under Section 3.5, together with, Developer other than a Permitted Encumbrance;
i a Certificate of Title in a form acceptable to the extent Agency in respect of the ownership of the Site and the Developer's estate or interest in it (being either the freehold estate or a reasonably detailed invoice has been delivered lease for a term of 99 years or more on terms acceptable to the Borrower prior Agency) issued to the date hereofAgency by the Solicitors certifying among other things that: (a) the Site is free from any conditions, all restrictions, covenants or third party interests which do or might affect the right to carry out and maintain the Works; and (b) the Developer has sufficient rights appurtenant to its estate or interest in the Site to enable the Scheme and the Works to be fully carried out and fully serviced without the need to acquire further land or obtain any rights from any other fees, expenses and reimbursement amounts due and payable party; ii a letter of undertaking relating to the Administrative Agent title and any other deeds to the Site and the registration of the Lenders, including, without limitation, Legal Charge [and notification of the reasonable and documented fees and expenses Intercreditor Deed] duly signed by the Solicitors in favour of counsel to the Administrative Agent, have been paidAgency;
(i) copies of policies, certificates or cover notes relating to each contract or policy of insurance taken out by or on behalf of the Developer sufficient in the opinion of the Agency to confirm compliance with clause 9.4;
(j) evidence that all documentation Consents and all other information regarding Authorisations the Borrower requested in connection with applicable “know your customer” Agency considers necessary have been obtained to ensure that each Milestone is met by the relevant Milestone Date;
(k) the grant of planning permission including approval of siting, design, access and anti-money laundering rules use, landscaping and regulations, including materials for [the Patriot Act, and whole of the Scheme] [each Dwelling] [each Plot];
(iil) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the BorrowerScheme Specific Conditions (if any); and
(xvm) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment [copies of the Administrative Agent:
(i) there shall not have occurred or become known Senior Finance Documents][Evidence satisfactory to the Administrative Agent or any of Agency] demonstrating that the Lenders any event, condition, situation or status since arrangements relating to all funding for the date of the information contained Scheme in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered addition to the Administrative Agent and Funding accord with the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot ActInitial Cashflow.
Appears in 1 contract
Sources: Loan Agreement
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 Revolving Credit Lender (other than any Lender that has requested that it not receive a Revolving Credit Note, ) and complying with the terms of, of Section 2.11(a2.10.
(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1initially to be a party thereto;
(iv) an opinion of H▇▇▇▇▇▇▇▇ Lovells & Worcester LLP, and an opinion of ▇▇▇▇ ▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to covering such matters as the Administrative AgentAgent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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) evidence a Compliance Certificate calculated as of the insurance required under Section 8.5Effective Date on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2017;
(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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixi) [intentionally omitted];
(xii) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixiii) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to Letter executed by the Borrower; and
(xvxiv) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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, 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;
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with 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 on the date hereof (and the obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the initial making of a Loan or the issuance of a Letter of CreditCredit on the date of such effectiveness, if any) is subject to the satisfaction or waiver of the following conditions precedent:
(a) : The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties Loan Party party hereto;
(ii) if to the extent requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereofrelevant Lender, Revolving Credit Notes executed by the BorrowerBorrowers, payable to each Revolving Credit applicable Lender that has requested a Revolving Credit Note, and complying with the terms of, of Section 2.11(a2.10(a) and a Term Loan the Swingline 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)Borrowers;
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1initially party thereto;
(iv) each other Loan Document required to be delivered on the Closing Date, including the Security Documents, executed by each Loan Party party thereto;
(v) an opinion of HWeil, Gotshal & ▇▇▇▇▇▇ Lovells LLP, counsel to the Borrower Borrowers and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance as to such matters as the Administrative Agent may reasonably satisfactory request;
(vi) an opinion of in-house counsel to the Loan Parties, addressed to the Administrative AgentAgent and the Lenders as to such matters as the Administrative Agent may reasonably request;
(vvii) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(viviii) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person 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 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 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 BorrowerBorrowers, authorized to execute and deliver on behalf of the Borrower Borrowers Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion 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 (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) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated Transfer Authorizer Designation Form effective as of the Agreement Date and calculated as of September 30, 2019Closing Date;
(xii) a Disbursement Instruction Agreement effective as (A) all filings and recordations that are necessary to perfect the security interests of the Agreement DateAdministrative Agent, on behalf of the Secured Parties, in the Collateral and (B) evidence reasonably satisfactory to the Administrative Agent that upon such filings and recordations such security interests constitute valid and perfected first priority Liens thereon (other than Customary Permitted Encumbrances arising under Applicable Law);
(xiii) UCC, tax, judgment and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions;
(xiv) evidence that the Fees (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 3.53.05, together withand, to the extent a reasonably detailed invoice has been delivered to the Borrower invoiced prior to the date hereofClosing Date, all other fees, expenses and reimbursement amounts due and payable to the Arranger, the Administrative Agent and any of the Lenders, including, without limitation, including the reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixv) insurance certificates, or other evidence, providing that the insurance coverage required under Section 7.04 (including both property and liability insurance) is in full force and effect;
(xvi) a certificate of the Chief Financial Officer of the Parent and the Partnership to the effect that (A) all documentation representations and warranties of the Loan Parties contained in this Agreement and the other information regarding the Borrower requested Loan Documents are true and correct, in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and all material respects (ii) except to the extent any representation and warranty is qualified by materiality or Material Adverse Effect, in which case such representation and warranty shall be true and correct in all respects), as of the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation Closing Date (except to the Borrower; and
extent such representations or warranties expressly relate to an earlier date (xvin which case such representations and warranties shall be true and correct on and as of such earlier date)), (B) such other documents and instruments upon giving effect to the transactions hereunder 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:
Closing Date, no Default or Event of Default has occurred and is continuing, (iC) there shall not have since December 31, 2011 no event or condition has occurred or become known to the Administrative Agent arisen, either individually or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsaggregate, 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;
(ii) 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 have a Material Adverse Effect or and (BD) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially all governmental and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all material third party approvals necessary filings and notices as shall be required to consummate in connection with the transactions contemplated hereby without and all material governmental and third party approvals necessary in connection with the occurrence continuing operations 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 boundthe Parent and its Subsidiaries shall have been obtained and be in full force and effect; and
(ivxvii) 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” 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 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) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Notes and Term Notes executed by the Borrower, payable to each Revolving Credit Lender (other than a Lender that has requested not to receive a Revolving Credit Note or a Term Note, as applicable) and complying with the terms ofapplicable provisions of Section 2.11, Section 2.11(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1[Reserved];
(iv) an opinion Opinions of H▇▇▇▇ Lovells LLP, counsel to NSA REIT and the Loan Parties (limited in scope to NSA REIT, the Borrower and the other Loan Partieseach Subsidiary Guarantor), addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative AgentLenders;
(v) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (if any) of NSA REIT and 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 (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 (except that, if any such document relating to any Subsidiary Guarantor any) have not changed from those previously delivered to Administrative Agent pursuant to the administrative agent under 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)Agreement;
(vi) a A certificate of good standing (or certificate of similar meaning) meaning with respect to NSA REIT, the Borrower, each of the Borrower and the Parent Guarantor Subsidiary Guarantor, issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State (or comparable official) of the state of formation of NSA REIT and each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued 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 a 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 BorrowingBorrowings, requests for Letters Notices of Credit, Continuation and 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 (except thatentity, if any such 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 Administrative Agent pursuant to the administrative agent under 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 (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) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence that the 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 3.53.6, together with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent Agent, the Titled Agents and any of the Lenders, including, without limitation, Lenders on or prior to the Effective Date (including the reasonable and documented fees fees, charges and expenses disbursements of counsel to the Administrative Agent, have been paid);
(ix) all The results of a recent UCC lien search in the jurisdiction of organization of the Borrower, which search results shall reveal no Liens on any of the assets of the Borrower except for Liens permitted by Section 10.6 or discharged on or prior to the Effective Date pursuant to a payoff letter or other documentation reasonably satisfactory to the Administrative Agent;
(xi) [Reserved];
(xii) [Reserved];
(xiii) Evidence of amendments to the Borrower’s (or any other Loan Party’s) existing senior Unsecured Indebtedness in a form and substance satisfactory to the Administrative Agent, to reflect conforming changes contemplated by this Agreement;
(xiv) A Compliance Certificate calculated as of June 30, 2019 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xv) A certificate signed by a Responsible Officer, certifying that the conditions set forth in Section 6.1(b) have been satisfied;
(xvi) such due diligence with respect to Eligible Unencumbered Properties as the Administrative Agent may reasonably request;
(xvii) All documentation and other information regarding the Borrower requested in connection with required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot USA PATRIOT Act, and a properly completed and signed IRS Form W-8 or W-9 (ii) to October 2018 form), as applicable, and the extent the Borrower qualifies as a “legal entity customer” under the Certification of Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrowerfor each such new Loan Party; and
(xvxviii) such Such other documents 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) In the good faith and reasonable judgment determination of the Administrative AgentAgent and the Lenders:
(i) there shall not have occurred or become known Both immediately before and immediately after giving effect to the Administrative Agent or any financing contemplated by this Agreement and the use of the Lenders any event, condition, situation or status since the date proceeds of the information contained in Loans to be funded on the financial and business projectionsEffective Date, 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;
(ii) 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 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);
(ii) There shall not have occurred any material adverse change since December 31, 2018, in the business, assets, operations or condition (financial or otherwise) of NSA REIT and any Loan Party, or in the facts and information regarding NSA REIT and any Loan Party provided by or on behalf of NSA REIT and any Loan Party to the Administrative Agent or any Lender;
(iii) After giving effect to the Borrower financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date, there shall not have occurred any event or condition that constitutes an “event of default” (howsoever defined) or that, with the giving of any notice, the passage of time, or both, would be an “event of default” under any of NSA REIT or the Loan Parties’ financial obligations (other Loan Parties than de minimis obligations) in existence on the Effective Date; and
(iv) NSA REIT and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any material default under, material conflict with or material violation of (A1) any Applicable Law or (B2) any material 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
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with 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 Except as otherwise set forth in the Post-Closing Letter, 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 Agreement, the Parent Guaranty and the Subsidiary Guaranty executed by each of the parties heretohereto and thereto;
(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 and Term Notes executed by the Borrower, payable to each Revolving Credit Lender (other than a Lender that has requested not to receive a Revolving Credit Note or a Term Note, as applicable) and complying with the terms ofapplicable provisions of Section 2.11, Section 2.11(a) and a Term Loan the Swingline 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) Counterparts of the Guaranty Pledge Agreement, executed by (a) the Parent Guarantor Borrower and by each Wholly-Owned Subsidiary holding a direct or indirect Equity Interest in, any California Partnership, (b) each of the other holders of a direct Equity Interest in, any California Partnership, and (c) in the case of any California Partnership owning or leasing any Real Estate Asset through a California Partnership Subsidiary, such California Partnership and each California Partnership Subsidiary Guarantors identified directly or indirectly owning or leasing the applicable Real Estate Asset, in Schedule 1.1each case in form and substance satisfactory to the Administrative Agent;
(iv) an opinion Opinions of H▇▇▇▇ Lovells LLP, counsel to the Borrower Loan Parties (limited in scope to NSA REIT, the Borrower, each Subsidiary Guarantor and each other pledgor under the other Loan PartiesPledge Agreement), addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative AgentLenders;
(v) Copies of the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (if any) of each Loan Party certified as of a 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 (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); provided that, for any Loan Party that is not a party to the Existing Credit Agreement, the Administrative Agent shall have received such articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other organizational instrument (if any) for such Loan Party certified as of a recent date by the Secretary of State (or comparable official) of such Subsidiary Guarantor so stating may be delivered in lieu the state of delivery of a current certified copy formation of such document)Loan Party;
(vi) a A certificate of good standing (or certificate of similar meaning) meaning with respect to NSA REIT, the Borrower, each of the Borrower and the Parent Guarantor Subsidiary Guarantor, issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State (or comparable official) of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued 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 a the failure of 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 each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, and the officers of 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 BorrowingBorrowings, requests for Letters Notices of Credit, Continuation and 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 (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 (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 (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) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence that the 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 3.53.6, together with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent Agent, the Titled Agents and any of the Lenders, including, without limitation, Lenders on or prior to the Effective Date (including the reasonable and documented fees fees, charges and expenses disbursements of counsel to the Administrative Agent, have been paid);
(ix) The results of a recent UCC lien search in the jurisdiction of organization of the Borrower, which search results shall reveal no Liens on any of the assets of the Borrower except for Liens permitted by Section 10.6 or discharged on or prior to the Effective Date pursuant to a payoff letter or other documentation reasonably satisfactory to the Administrative Agent;
(xi) A perfection certificate for each pledgor under the Pledge Agreement which is not a pledgor in connection with the Existing Credit Agreement, in the form provided by the Administrative Agent, signed by a Responsible Officer;
(xii) certificates and instruments representing the Equity Interests (to the extent such Equity Interests are certificated as of the Effective Date) pledged as Collateral pursuant to the Pledge Agreement, accompanied by undated stock powers or instruments of transfer executed in blank;
(xiii) Proper UCC-1 financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Collateral Documents, covering the Collateral;
(xiv) A Compliance Certificate calculated as of December 31, 2015 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xv) A certificate signed by a Responsible Officer, certifying that the conditions set forth in Section 6.1(b) have been satisfied;
(xvi) such due diligence with respect to Eligible Unencumbered Properties as the Administrative Agent may reasonably request;
(xvii) All documentation and other information regarding the Borrower requested in connection with required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot USA PATRIOT Act, and (ii) to the extent the Borrower qualifies a properly completed and signed IRS Form W-8 or W-9, as a “legal entity customer” under the Beneficial Ownership Regulationapplicable, a Beneficial Ownership Certification in relation to the Borrowerfor each Loan Party; and
(xvxviii) such Such other documents 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) In the good faith and reasonable judgment determination of the Administrative AgentAgent and the Lenders:
(i) there shall not have occurred or become known Both immediately before and immediately after giving effect to the Administrative Agent or any financing contemplated by this Agreement and the use of the Lenders any event, condition, situation or status since the date proceeds of the information contained in Loans to be funded on the financial and business projectionsEffective Date, 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;
(ii) 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 no Default or Event of Default exists, (B) restrain the representations and warranties made or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other deemed made by each Loan Party to fulfill its obligations under in the Loan Documents to which it is a partyparty are true and correct in all material respects (or in all respects to the extent that such representations and warranties are already subject to concepts of materiality) on and as of the Effective Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties are true and correct in such respects on and as of such earlier date);
(ii) There shall not have occurred any material adverse change since December 31, 2015, in the business, assets, operations or condition (financial or otherwise) of any Loan Party, or in the facts and information regarding any Loan Party provided by or on behalf of any Loan Party to the Administrative Agent or any Lender;
(iii) After giving effect to the Borrower 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 the Loan Parties’ financial obligations (other Loan Parties than de minimus obligations) in existence on the Effective Date; and
(iv) NSA REIT and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any material default under, material conflict with or material violation of (A1) any Applicable Law or (B2) any material agreement, document or instrument to which any Loan Party is a party or by which any of them Loan Party or their respective its properties is bound; and
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with 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 Effective 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) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Notes and Bid Rate Notes executed by the Borrower, payable to each Revolving Credit Lender that has requested a Revolving Credit Noteall Lenders or any Designated Lender, if applicable, and complying with the terms of, of Section 2.11(a) 2.11.; and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1initially to be a party thereto;
(iv) (A) an opinion of H▇▇▇▇▇▇ Lovells & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan PartiesGuarantors, addressed to the Administrative Agent and the Lenders and covering the matters set forth in form and substance reasonably satisfactory Exhibit N-1, (B) an opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel to the Administrative AgentBorrower, addressed to the Agent and the Lenders and covering the matters set forth in Exhibit N-2, and (C) an opinion of the Borrower’s general counsel addressed to the Agent and the Lenders and covering the matters set forth in Exhibit N-3;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Person;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person 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 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 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 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, 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 (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 (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 (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) evidence an Unencumbered Pool Certificate calculated as of the insurance required under Section 8.5March 31, 2008;
(x) a certificate of Compliance Certificate calculated on a pro forma basis for 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 AgreementBorrower’s fiscal quarter ending March 31, 2008;
(xi) a Compliance Closing Certificate dated as substantially in form of Exhibit R, executed on behalf of the Agreement Date and calculated as Borrower by an authorized officer of September 30, 2019the Borrower;
(xii) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent 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 3.53.6., together with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixiv) evidence satisfactory to the Agent that upon funding of the Loans requested on the Effective Date all documentation and other information regarding amounts owing under the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulationsExisting Credit Agreement, including the Patriot Actwithout limitation all principal, interest and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulationfees, a Beneficial Ownership Certification will be repaid in relation to the Borrowerfull; and
(xv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(ii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing 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;
(iii) the The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There 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) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Notes and Term Notes executed by the Borrower, payable to each Revolving Credit applicable Lender (other than any Lender that has requested that it not receive a Revolving Credit Note, ) and complying with the terms of, of Section 2.11(a2.11.
(a) and a Term Loan the Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1Guarantors, if any, initially to be a party thereto;
(iv) an opinion of H▇▇▇▇▇▇▇▇ Lovells & Worcester LLP, and an opinion of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to covering such matters as the Administrative AgentAgent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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) evidence a Compliance Certificate calculated as of the insurance required under Section 8.5Effective Date on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2017;
(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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixi) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixii) a copy of all documentation Operating Agreements, all Ancillary Agreements, the Business Management Agreement, the Property Management Agreement, in each case certified as true, correct and other information regarding complete by the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to chief operating officer or chief financial officer of the Borrower; and
(xvxiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(iic) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (Ai) any Applicable Law or (Bii) 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, 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;
(ive) 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) 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 Revolving Credit Lender (other than any Lender that has requested a Revolving Credit Note, that it not receive Notes) and complying with the terms of, of Section 2.11(a) and 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(a2.11.(a);
; (iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1;
Parent; (iv) an opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in the form and substance reasonably satisfactory to the Administrative Agent;
set forth in Exhibit J; (v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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);
Party; (vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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 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 (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) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(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, 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 fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with 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) if requested by any Lender pursuant to Section 2.11(aNotes (or replacement Notes, as the case may be) at least three (3) days prior to the date hereof, Revolving Credit Notes of each Class executed by the Borrower, payable to each Revolving Credit Lender of such Class that has requested that it receive a Revolving Credit NoteNote of such Class, and complying with the terms of, of Section 2.11(a2.11.
(a) and a Term Loan replacement Swingline Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);;
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary other Guarantors identified in Schedule 1.1;initially to be a party thereto;
(iv) an opinion of H▇▇▇▇▇▇ Lovells & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to covering such matters as the Administrative AgentAgent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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);Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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) evidence of a Compliance Certificate calculated on a pro forma basis for the insurance required under Section 8.5;previous four calendar quarters ending on June 30, 2018;
(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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) [Reserved];
(xii) copies of all Material Contracts in existence on the Agreement Date and either entered into or amended in any material respect after April 2, 2015;
(xiii) evidence 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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, including without limitation, the reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;;
(ixiv) all documentation and other information regarding certificates of insurance evidencing the Borrower requested insurance then in connection effect with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) respect to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification Properties and otherwise in relation to the Borrowercompliance with Section 8.5.; and
(xv) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith 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 their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;materially adverse effect on the business, assets, liabilities, condition (financial or otherwise), results of operations or business prospects of the Parent, the Borrower and the Subsidiaries taken as a whole;
(iic) no 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 Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;;
(iiid) the Borrower and 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 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
(ive) 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:
(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 Revolving Credit Lender (other than any Lender that has requested that it not receive a Revolving Credit Note, ) and complying with the terms of, of Section 2.11(a) and 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(a2.10.(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1Guarantors, if any, initially required to be a party thereto pursuant to Section 7.13.;
(iv) an opinion of H▇▇▇▇▇▇▇▇ Lovells & Worcester LLP, and an opinion of ▇▇▇▇ ▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to covering such matters as the Administrative AgentAgent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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) evidence a Compliance Certificate calculated as of the insurance required under Section 8.5Effective Date on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2017;
(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 as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixi) [intentionally omitted];
(xii) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixiii) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to Letter executed by the Borrower; and
(xvxiv) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(iic) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (Ai) any Applicable Law or (Bii) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which 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
(ivf) 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
Sources: Term Loan Agreement (Senior Housing Properties Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, 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 and Bid Rate Notes executed by the BorrowerBorrowers, payable to each Revolving Credit applicable Lender (including any Designated Lender, if applicable), other than any Lender that has requested a Revolving Credit Note, that it not receive Notes and complying with the terms of, of Section 2.11(a2.11.(a) and a Term Loan the Swingline 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)Borrowers;
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1;
(iv) an opinion or opinions of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan PartiesBorrowers, addressed to the Administrative Agent and the Lenders and covering the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit M;
(viv) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (if any) of each Loan Party Borrower 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 (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)Borrower;
(viv) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Borrower 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 a Loan Party such Borrower 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 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, and in the case of the BorrowerBorrower Representative, authorized to execute and deliver on behalf of the each Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and Conversion, Notices of Continuation, Bid Rate Quote Requests and Bid Rate Quote Acceptances;
(viiivii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party Borrower of (A) the such Borrower’s by-laws of such Loan Partylaws, 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 Borrower to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xiviii) a Compliance Certificate dated as for each of the Agreement Date Parent and Reckson calculated as of September on a pro forma basis for the Parent’s fiscal quarter ended June 30, 20192011;
(xiiix) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiix) evidence that all indebtedness, liabilities or obligations owing by the Fees (including, to the extent then due, the “Fees” (under Borrowers and as defined in the Existing Credit Agreement) and interest their Subsidiaries under the Existing Credit Agreement accrued through shall have been paid in full, all Commitments thereunder have been terminated and all Liens, if any, securing such indebtedness, liabilities or other obligations have been released;
(xi) evidence that the Effective Date)Fees, if any, then due and payable under Section 3.5., together with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xvxii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender (through the Administrative Agent), may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(ii) 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 any Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower Parent and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby 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 Borrower 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 impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of any Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) the each 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
Sources: Credit Agreement (Sl Green Operating Partnership, 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, 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 Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, Section 2.11(a) and a Term Loan A Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1;
(iv) an opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a 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 (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the “Existing Credit Agreement 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 of the Borrower and the Parent Guarantor Loan Party issued as of a date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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 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) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 20192012;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xvxiv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with 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) 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 BorrowerBorrowers, payable to each Revolving Credit Lender that has (if requested a Revolving Credit Note, by such Lender) and complying with the terms of, applicable provisions of Section 2.11(a) and 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)2.10;
(iii) the The Guaranty executed by the Parent each Guarantor and by each existing as of the Subsidiary Guarantors identified in Schedule 1.1Effective Date;
(iv) an The Pledge Agreement executed by the Parties thereto;
(v) An opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and Lenders, addressing the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit F;
(vvi) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership or other comparable organizational document instrument (if any) of the Borrowers and each other 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 (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)Party;
(vivii) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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 BorrowerBorrowers, authorized to execute and deliver on behalf the officers of the Borrower Representative then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of CreditContinuation, Notices of Conversion and Notices to request the issuance of ContinuationLetters of Credit;
(viiiix) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such 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 (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 (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) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence that the 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 3.53.6, together with, and any other Fees payable to the extent a reasonably detailed invoice has been delivered to Agent, the Borrower Titled Agents and the Lenders on or 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 fees and expenses of counsel to the Administrative Agent, have been paidEffective Date;
(ixi) all documentation A Compliance Certificate calculated as of December 31, 2010 (giving pro forma effect to the financing contemplated by this Agreement and other the use of the proceeds of the Loans to be funded on the Effective Date);
(xii) A letter from each applicable agent under the Existing Credit Agreement providing information regarding the Borrower requested payment in connection full of amounts outstanding thereunder and providing for the treatment thereof;
(xiii) A Borrowing Base Certificate dated as of the Effective Date;
(xiv) Such due diligence (including lien searches and/or title reports) with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) respect to the extent Borrowing Base Assets Pool as the Borrower qualifies as a “legal entity customer” under Agent on behalf of the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; andLenders may reasonably request;
(xv) such all documentation, recordings, filings and other documents actions in the judgment of the Agent required to collaterally assign the Collateral to the Agent for the benefit of the Lenders and to perfect the Agent’s first priority Lien therein for the benefit the Lenders shall have been completed;
(xvi) the Borrower and each other Loan Party shall have provided all information requested by the Agent and each Lender in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001));
(xvii) 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) In the good faith and reasonable judgment of the Administrative AgentAgent and the Lenders:
(i) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(ii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (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 Borrowers or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower The Trust and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any material agreement, document or instrument to which any Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which 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 Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the 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 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 Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms ofapplicable provisions of Section 2.10., Section 2.11(a) and a Term Loan the Swingline 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 The Guaranty executed by the Parent Guarantor and by each Subsidiary that owns or leases a Collateral Property as of the Agreement Date and each Material Subsidiary Guarantors identified in Schedule 1.1(other than any Excluded Subsidiary) as of the Agreement Date;
(iv) an An opinion or opinions of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and Agent, the Lenders and the Swingline Lender, addressing the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit H;
(v) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership or other comparable organizational document instrument (if any) of the Borrower and each other 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 (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)Party;
(vi) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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 BorrowingBorrowings, requests for Letters Notices of Credit, Continuation and 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 (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 (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) evidence of the insurance required The Fees then due and payable under Section 8.53.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Agreement Date;
(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 A Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 20192005 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Closing Date);
(xiixi) a Disbursement Instruction Agreement effective A Borrowing Base Certificate calculated as of the Agreement Date;
(xiiixii) evidence that A letter from the Fees (including, to the extent then due, the “Fees” (under and as defined in the Existing Credit Agreement) and interest agent bank under the Existing Credit Agreement accrued through providing information regarding the Effective Date), if any, then due payment in full of amounts outstanding under the Existing Credit Agreement and payable under Section 3.5, together with, to providing for the extent a reasonably detailed invoice has been delivered to termination thereof and the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paidobligations owing thereunder;
(ixiii) all documentation All of the items required to be delivered under Sections 4.1. and 4.2. with respect to each Property identified on Schedule 4.1.;
(xiv) The results of a lien search in each of the jurisdictions in which UCC financing statements or other information regarding filings or recordations should be made to evidence or perfect security interests in Collateral (as defined in the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulationsPledge Agreement), including without limitation the Patriot Actjurisdiction of formation of the Borrower, such search results to reveal no Liens of record with respect to any of such Collateral;
(xv) The Pledge Agreement executed by the Borrower;
(xvi) 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 duly authorized officer of the Borrower, together with an Acknowledgment and Consent, substantially in the form of Schedule 2 to the Pledge Agreement, duly executed by each of the NY Owners;
(iixvii) UCC financing statements describing the Collateral (as defined in the Pledge Agreement) to be filed in New York and such other jurisdictions as necessary to perfect the extent security interest purported to be created by the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the BorrowerPledge Agreement; and
(xvxviii) such Such other documents 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) In the good faith and reasonable judgment of the Administrative AgentAgent and the Lenders:
(i) there There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since 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;
(ii) no No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (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;
(iii) the The Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices 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 (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
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.or
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) : The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(ia) counterparts of this Agreement executed by each of the parties hereto;
(iib) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Credit Notes and Bid Rate Notes executed by the Borrower, payable to each Revolving Credit applicable Lender (including any Designated Lender, if applicable, but excluding any Lender that has requested a Revolving Credit Note, that it not receive Notes) and complying with the terms of, of Section 2.11(a) and 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(a2.13(a);
(iiic) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1initially to be a party thereto;
(ivd) an opinion of H▇▇▇▇ Lovells LLP, counsel to the Borrower and the such other Loan PartiesParties organized in Delaware as the Administrative Agent may request, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative AgentLenders;
(ve) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vif) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party 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 a Loan Party the Borrower is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viig) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such 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, requests for Letters of Credit, Notices of Conversion Conversion, and Notices of Continuation;
(viiih) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such 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) evidence of the insurance required under Section 8.5;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xii) a Compliance Certificate dated as of and an Unencumbered Asset Value Certificate calculated on a pro forma basis for the Agreement Date and calculated as of September Borrower’s fiscal quarter ending June 30, 20192016;
(xiij) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence that the Fees (includingUCC, to the extent then duetax, the “Fees” (under judgment 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, to the extent a reasonably detailed invoice has been delivered lien search reports with respect 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 fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence or appropriate jurisdictions indicating that there are no liens 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
(iv) the Borrower and each record 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.than Permitted Liens;
Appears in 1 contract
Sources: Credit Agreement (Equity One, Inc.)
Initial Conditions Precedent. The obligation of Banks to make ---------------------------- the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a initial Loan or the issuance of a Letter of Credit, hereunder is subject to the satisfaction condition that on or waiver of before the following conditions precedent:
Effective Date, (a) The there shall have been delivered to Administrative Agent shall have received with counterparts for each of the following, Bank and in form and substance satisfactory to the Administrative Agent, each dated the Effective Date unless otherwise indicated:
(i) counterparts of this Agreement The Guaranties, duly executed and delivered by each of the parties heretoGuarantors;
(ii) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to Certified copies of the date hereof, Revolving Credit Notes executed by resolutions of the Borrower, payable to Board of Directors of each Revolving Credit Lender that has requested a Revolving Credit NoteObligor approving this Agreement, and complying of all documents evidencing other necessary corporate action and governmental approvals, if any, with the terms of, Section 2.11(a) and a Term Loan Note executed by the Borrower, payable respect to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a)this Agreement;
(iii) the Guaranty executed by the Parent Guarantor and by each A certificate of the Subsidiary Guarantors identified in Schedule 1.1Secretary or an Assistant Secretary of each Obligor certifying the names and true signatures of the officers of such Obligor authorized to sign this Agreement and the other documents to be delivered hereunder;
(iv) an opinion Certified copies of H▇▇▇▇ Lovells LLPeach Obligor's Certificate of Incorporation or Deed of Incorporation, counsel together with a good standing certificate from its jurisdiction of incorporation, each to be dated a recent date prior to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative AgentEffective Date;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) Copies of each Loan Party Obligor's Memorandum of Association and Articles of Incorporation or Articles of Association and Extract from Commercial Register, certified as of a 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 (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 its Secretary or an 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)Secretary;
(vi) a certificate Favorable opinions of good standing (or certificate of similar meaningA) with respect to each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Company, Bahamas counsel for the Borrower and Dish Placement, substantially in the Parent form of Exhibit F-1 hereto, (B) Trenite Van Doorne, counsel for White Holding, substantially in the Form of Exhibit F-2 hereto, (C) ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, New York counsel for the Obligors, substantially in the form of Exhibit G hereto, (D) the Assistant General Counsel of ▇▇▇▇▇▇, substantially in the form of Exhibit H-1 hereto, and (E) counsel for each Guarantor issued as (other than ▇▇▇▇▇▇), substantially in the form of a date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which 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 EffectExhibit H-2 hereto;
(vii) a certificate A favorable opinion of incumbency signed by O'Melveny & ▇▇▇▇▇ LLP, special counsel for the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a partyAdministrative Agent, and substantially in the case form of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of ContinuationExhibit I hereto;
(viii) Certified copies certified by of the Secretary or Assistant Secretary (or other individual performing similar functions) resolutions of the Board of Directors of each Loan Party of (A) Guarantor, approving 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 Guaranty to which it is a party, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to such Guaranty;
(ix) evidence A certificate of the insurance required under Section 8.5Secretary or an Assistant Secretary of each Guarantor (or, in the case of a foreign Guarantor, a similar officer for companies in such foreign country) certifying the names and true signatures of the officers of such Guarantor authorized to sign the Guaranty to which it is a party and the other documents to be delivered hereunder;
(x) a certificate Certified copies of the Borrower Certificate of Incorporation of each Guarantor above, together with good standing certificates from the jurisdiction of its incorporation and its principal place of business, each to be dated a recent date prior to the Parent Guarantor certifying that the Properties identified Effective Date (or, with respect to foreign Guarantors, such appropriate similar documents for companies in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreementsuch foreign country);
(xi) a Compliance Certificate dated Copies of the Bylaws of each Guarantor (or, with respect to ▇▇▇▇▇▇▇ Investments LLC, its Memorandum of Association and Articles of Association), certified as of the Agreement Effective Date and calculated as by its Secretary or an Assistant Secretary (or, in the case of September 30▇▇▇▇▇▇▇ Investments LLC, 2019;a similar officer for companies in the Cayman Islands); and
(xii) a Disbursement Instruction Agreement effective Such other instruments, information or documents as of the Agreement Date;
(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, 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 fees and expenses of counsel to the Administrative Agent, have been paid;
(i) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; and
(xv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, Majority Banks 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with 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 the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement duly 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 Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of, Section 2.11(a) and a Term Loan Note duly executed by the Borrower, payable to each applicable Term Loan Lender (but excluding any Lender that has requested a Term Loan Note, that it not receive Notes) and complying with the terms of, of Section 2.11(a)2.12(a) executed by the Borrower;
(iiiA) the Guaranty Security Agreement duly executed by each Borrower to be a party thereto, (B) all UCC financing statements in proper form for filing in the applicable filing offices, and (C) with respect to deposit accounts and securities accounts constituting Collateral, control agreements with respect thereto duly executed by the Parent Guarantor applicable Borrower, depositary bank, and by each of the Subsidiary Guarantors identified in Schedule 1.1Administrative Agent;
(iv) an opinion one or more opinions of H▇▇▇▇ Lovells LLP, counsel to the Borrower and such other parties as the other Loan PartiesAdministrative Agent may request, addressed to the Administrative Agent and the Lenders and in a form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (if any) of each Loan Party Borrower together with any amendments thereto (if any) 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 (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)Borrower;
(vi) a certificate of good standing (or certificate of similar meaning) existence with respect to each of the Borrower and the Parent Guarantor issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person South Carolina and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each the Secretary of State (and any state department of taxation, as applicable) of each other state in which a Loan Party the Borrower 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 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, 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 Borrower 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 (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 member, manager or other necessary action taken by the such Loan Party Borrower to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) evidence a Borrowing Base Certificate calculated as of the insurance required under Section 8.5Agreement Date;
(x) a certificate from a Responsible Officer of each Borrower certifying that after giving pro forma effect to the transactions contemplated by this Agreement on the Effective Date that such 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 Agreementits Subsidiaries, on a consolidated basis, are Solvent;
(xi) a Compliance Certificate for the Borrower’s fiscal quarter ending March 31, 2023;
(xii) a closing certificate for the Borrower dated as of the Agreement Date and calculated as of September 30, 2019Date;
(xiixiii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixiv) copies of all Material Contracts and Specified Derivatives Contracts in existence on the Agreement Date;
(xv) the Fee Letter;
(xvi) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixvii) all documentation and other information regarding with respect to each Borrowing Base Property identified on Schedule 4.1, each of the Borrower requested items referred to in Section 6.3 required to be delivered in connection with applicable “know your customer” any Borrowing Base Property;
(xviii) UCC, tax, judgment and antilien search reports with respect to each Borrower and, as reasonably required by Administrative Agent, 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;
(xix) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xx) Phase I environmental assessment reports and any further environmental investigation required by the Administrative Agent for the initial Borrowing Base Properties;
(xxi) (A) copies of satisfactory reviewed consolidated financial statements for UHG and its Subsidiaries acceptable to Administrative Agent and the Lenders (B) pro forma consolidated financial statements for UHG and its Subsidiaries for the four-money laundering rules quarter period most recently ended prior to the Effective Date for which financial statements are available giving pro forma effect to the transactions occurring on the Effective Date and regulations, including a pro forma balance sheet of UHG and its Subsidiaries as of the Patriot Act, Effective Date giving pro forma effect to the transactions occurring on the Effective Date and (iiC) projections prepared by management of balance sheets, income statements and cash flow statements of UHG and its Subsidiaries, which will be quarterly for the first year after the Effective Date and quarterly thereafter through the Maturity Date (and which will not be inconsistent with information provided to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation Administrative Agent prior to the delivery of the Borrower’s commitment letter with the Administrative Agent); and
(xvxxii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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 projectionsMarch 31, budgets2023, 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;
(iic) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any material agreement, document or instrument to which any Loan Party the Borrower is a party or by which any of them or their respective properties is bound; andbound (including, without limitation, the documents evidencing the Convertible Debt);
(ive) 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 ActAct and the Beneficial Ownership Regulation; 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 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) 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 Revolving Credit Lender (other than any Lender that has requested that it not receive a Revolving Credit Note, ) and complying with the terms of, of Section 2.11(a) and 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(a2.8.(a);
(iii) the Guaranty executed by the Parent Guarantor and by each of the Subsidiary Guarantors identified in Schedule 1.1initially to be a party thereto;
(iv) an opinion of H▇▇▇▇▇▇▇▇ Lovells & Worcester LLP, and opinion of ▇▇▇▇ ▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in form and substance reasonably satisfactory to the Administrative AgentExhibit H;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership partnership, declaration of trust or other comparable organizational document instrument (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 (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)Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each of the Borrower and the Parent Guarantor Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which a 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, 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) evidence a Compliance Certificate calculated as of the insurance required under Section 8.5Effective Date on a pro forma basis for the Borrower’s fiscal quarter ended March 31, 2014;
(x) a certificate 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 Borrower and Loans initially are to be LIBOR Loans, the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this AgreementInterest Period therefor;
(xi) a Compliance Certificate dated as of the Agreement Date and calculated as of September 30, 2019;
(xii) 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, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, 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 reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(ixiv) all documentation and other information regarding a copy of the Stock Purchase Agreement, dated as of July 8, 2014 (the “Stock Purchase Agreement”), among CommonWealth REIT, the Borrower requested and RMR, certified by a Responsible Officer as the Stock Purchase Agreement for which all signature pages are being held in connection with applicable “know your customer” escrow pending receipt of funds for the purchase by each of the Borrower and anti-money laundering rules RMR of their respective Applicable Shares (as defined in the Stock Purchase Agreement) at which time such signature pages will be released from escrow and regulations, including a fully executed Stock Purchase Agreement will be distributed to the Patriot Actparties thereto, and (ii) to a written certification by a Responsible Officer that all conditions precedent for the extent purchase by the Borrower qualifies as a “legal entity customer” under of its Applicable Shares have been satisfied and that upon the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to making of the Loans the Borrower’s purchase of its Applicable Shares shall be consummated;
(xv) the Borrower Letter executed by the Borrower; and
(xvxvi) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) there 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;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, 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, 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;
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender may request in order to comply with 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)