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 following conditions precedent: (a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent: (i) Counterparts of this Agreement executed by each of the parties hereto; (ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9; (iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel; (iv) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification; (v) A certificate of good standing 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 the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect; (vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit; (vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party; (viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date; (ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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; (x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof; (xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and (xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request. (b) In the good faith judgment of the Agent and the Lenders: (i) There shall not have occurred or become known to the 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect; (ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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; (iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan Documents.
Appears in 3 contracts
Sources: Credit Agreement (Epr Properties), Credit Agreement (Epr Properties), Credit Agreement (Epr Properties)
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, perform its obligations under this Agreement is subject to the conditions precedent that Lender shall have received each of the following conditions precedentexecuted documents on the date of this Agreement:
(a) The Agent shall have received each of the followingPre-Approval Note, in the form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties Exhibit B attached hereto;
(iib) Notes executed by The First Year Sales Note, in the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions form of Section 2.9Exhibit C attached hereto;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(ivc) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing 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 the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance CertificateSecurity Agreement, dated as of the Effective Date, based on financial results as date of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement between Lender and Borrower (the use of "Security Agreement"), granting Lender a first priority, perfected security interest in the proceeds of Collateral (as defined in the Loans Security Agreement), as well as financing statements and other instruments duly filed in each jurisdiction that Lender deems necessary to be funded on establish and perfect a first priority, perfected security interest created by the Effective DateSecurity Agreement in such Collateral;
(xd) A letter from the agents under the Existing Agreement providing information regarding the payment in full Copies of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf resolutions of the Lenders may reasonably request.
(b) In Board of Directors of Borrower approving this Agreement, the good faith judgment of Notes, the Agent Security Agreement and the Lenders:
(i) There shall not have occurred any other documents required or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower and 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 in this Loan Agreement (collectively, the occurrence "Loan Documents") and the Services Agreement, in each case certified by an appropriate officer of any default under, conflict with or violation of Borrower;
(1e) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 A certificate of the appropriate officers of Borrower certifying (i) the names and true signatures of the officers of Borrower authorized to fulfill its obligations under sign the Loan Documents to and the Services Agreement, (ii) that the representations and warranties contained in Article IV of this Agreement are true and correct as of the date hereof, and (iii) that no event has occurred and is continuing, which it is a partyconstitutes an Event of Default (as defined in Section 7.01 hereof) or would constitute an Event of Default but for the requirement that notice be given or time elapse or both;
(f) A copy of the Ranolazine License Agreement, and all amendments thereto, certified as true and correct by an appropriate officer of Borrower.
(g) A legal opinion of ▇▇▇▇▇▇ Godward LLP, counsel for Borrower, regarding the Loan Documents and the transactions contemplated thereby; and
(ivh) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected Consents required to materially and adversely affect effectuate the transactions contemplated by this Agreement from all necessary parties (if any), including without limitation ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ and Biogen, Inc. or their respective affiliates, and the Loan Documentslicensor under the Ranolazine License Agreement.
Appears in 2 contracts
Sources: Loan Agreement (Cv Therapeutics Inc), Loan Agreement (Cv Therapeutics Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of Loans on the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Effective Date is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) Borrower and complying with the applicable provisions of Section 2.92.8. executed by the Borrower;
(iii) The Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) An opinion of counsel to the BorrowerLoan Parties, addressed to the Agent and the Lenders, in substantially the form and substance acceptable to Agent’s counselset forth in Exhibit F;
(ivv) A copy, The declaration of trust of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative state of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationits incorporation;
(vvi) A certificate of good standing 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 the Borrower its incorporation and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which 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;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices the Notice of Borrowing, Borrowing and Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditConversion;
(viiviii) Copies Copies, certified by the Secretary or Assistant Secretary of the Borrower, of (i) the bylaws of the Borrower and (ii) all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(ix) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the state of formation of such Guarantor;
(x) A certificate of good standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by (or other comparable evidence from) the Secretary of State of the state of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by (or other comparable evidence from) each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(xi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the Borrower officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and entity, (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a partyparty and (iii) the articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of such Guarantor;
(viiixiii) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxiv) A Compliance Certificate, dated Certificate calculated as of the Effective Date, based on financial results as of June September 30, 2021 and after 2007 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xxv) A letter from the agents under the Existing Agreement providing information regarding the payment in full The Notice of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requireBorrowing; and
(xiixvi) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), 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;
(iii) The Borrower 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents; and
(c) No Default or Event of Default shall exist as of the date of the making of such Loans or would exist immediately after giving effect thereto; and
(d) The representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party shall be true and correct on and as of the date of the making of the Loans with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date) and except for changes in factual circumstances not prohibited under the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Federal Realty Investment Trust), Credit Agreement (Federal Realty 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 following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.10., and the Swingline Note executed by the Borrower;
(iii) The Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) An opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, counsel to the BorrowerLoan Parties, and an opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel to the Loan Parties, addressed to the Agent and the Lenders, in form Lenders and substance acceptable to Agent’s counselcovering such matters as are customary for financings of the type contemplated by the Loan Documents and such other matters as the Agent may reasonably request;
(ivv) A copy, The declaration of trust of the Borrower certified as of a recent date by the appropriate officer Department of Assessments and Taxation of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationMaryland;
(vvi) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary Department of Assessments and Taxation of the State of the state of formation of the Borrower Maryland and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which 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;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary or Assistant Secretary of the Borrower, of all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(ix) The Governing Documents of each Guarantor certified as of a recent date by the Secretary of State of the State of formation of such Guarantor;
(x) A certificate of good standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by the Secretary of State of the State of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(xi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the Borrower officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) A copy of (y) all Operating Agreements, all Ancillary Agreements and the Advisory Agreement, in each case certified as true, correct and complete by the chief operating officer or chief financial officer of the Borrower, and (z) an Operating Agreement Abstract with respect to each Operating Agreement for the Unencumbered Hotels;
(xiv) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixxv) A Compliance Certificate, dated Certificate calculated as of the Effective DateDecember 31, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require2004; and
(xiixvi) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), 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;
(iii) The Borrower 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Hospitality Properties Trust), Credit Agreement (Hospitality 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 of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions terms of Section 2.92.10.
(a) and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by each of counsel to the Borrower, addressed to Guarantors existing as of the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copy, The articles of incorporation of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationMaryland;
(v) A certificate of good standing 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 the Borrower its incorporation and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which 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;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies, certified by the Secretary or Assistant Secretary of the Borrower, of (i) the bylaws of the Borrower and (ii) all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(viii) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the state of formation of such Guarantor;
(ix) A certificate of good standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by the Secretary of State of the state of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(x) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xi) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixii) An opinion of counsel to the Loan Parties addressed to the Administrative Agent, the Lenders and the Swingline Lender, addressing the matters set forth in Exhibit J;
(xiii) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Administrative Agent, the Titled Agents and the Lenders on or prior to the Effective Date, including without limitation, the fees and expenses of counsel to the Administrative Agent;
(ixxiv) A Compliance Certificate, dated Certificate calculated as of the Effective Date, based on financial results as of June March 30, 2021 and after 2011 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xxv) A letter from a Transfer Authorizer Designation Form effective as of the agents Agreement Date;
(xvi) evidence that all indebtedness, liabilities or obligations (other than obligations in respect of Existing Letters of Credit) owing by the Loan Parties under the Existing Credit Agreement providing information regarding the payment shall have been paid in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requireall Liens, if any, securing such indebtedness, liabilities or other obligations have been released; and
(xiixvii) Such such other documents, agreements documents and instruments as the Agent on behalf of Administrative Agent, or any Lender through the Lenders Administrative Agent, may reasonably request.; and
(b) In the good faith judgment of the Agent and the LendersAdministrative 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 which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iv) The Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)); and
(ivv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (National Retail Properties, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of Loans on the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Effective Date is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) Borrower and complying with the applicable provisions of Section 2.92.8. executed by the Borrower;
(iii) The Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) An opinion of counsel to the BorrowerLoan Parties, addressed to the Agent and the Lenders, in substantially the form and substance acceptable to Agent’s counselset forth in Exhibit F;
(ivv) A copy, The declaration of trust of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative state of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationits incorporation;
(vvi) A certificate of good standing 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 the Borrower its incorporation and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which 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;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices the Notice of Borrowing, Borrowing and Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditConversion;
(viiviii) Copies Copies, certified by the Secretary or Assistant Secretary of the Borrower, of (i) the bylaws of the Borrower and (ii) all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(ix) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the state of formation of such Guarantor;
(x) A certificate of good standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by (or other comparable evidence from) the Secretary of State of the state of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by (or other comparable evidence from) each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(xi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the Borrower officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and entity, (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a partyparty and (iii) the articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of such Guarantor;
(viiixiii) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxiv) Evidence of payment in full of all Indebtedness owed by the Borrower under the Existing Term Loan Agreement;
(xv) A Compliance Certificate, dated Certificate calculated as of the Effective DateDecember 31, based on financial results as of June 30, 2021 and after 2008 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xxvi) A letter from the agents under the Existing Agreement providing information regarding the payment in full The Notice of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requireBorrowing; and
(xiixvii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), 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;
(iii) The Borrower 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents; and
(c) No Default or Event of Default shall exist as of the date of the making of such Loans or would exist immediately after giving effect thereto; and
(d) The representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party shall be true and correct on and as of the date of the making of the Loans with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date) and except for changes in factual circumstances not prohibited under the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Federal Realty Investment Trust), Credit Agreement (Federal Realty 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 Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each Lender (all Lenders and any Designated Lender, if requested by such Lender) applicable, and complying with the applicable provisions terms of Section 2.92.11.(a); and the Swingline Note executed by the Borrower;
(iii) An the Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party to the Guaranty as of the Effective Date;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(ivv) A copythe certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative state of the Borrower, to be true and complete, formation of the corporate charter or other formation document of the Borrower as in effect on such date of certificationPerson;
(vvi) A a certificate of good standing (or certificate of similar meaning meaning) with respect to the Borrower each Loan Party issued as of a recent date by the Secretary of State of the state of formation of the Borrower each such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vivii) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party with respect to each of the officers of the Borrower such Person authorized to execute and deliver the Loan Documents to which the Borrower such Person is a party, and each in the case of the officers Borrower, authorized to execute and deliver on behalf of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote Requests;
(viiviii) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower Loan Party of (iA) the by-laws of such Person, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (iiB) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Dateif any;
(ix) A Compliance Certificate, dated an Unencumbered Pool Certificate calculated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing a Compliance Certificate calculated on a pro forma basis for the termination thereofBorrower’s fiscal quarter ending December 31, 2006;
(xi) Such due diligence with respect evidence satisfactory to the Unencumbered Pool Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent may reasonably requirethat the Fees, if any, then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Agent, have been paid; and
(xiixiv) Such such other documents, agreements documents and instruments as the Agent on behalf of Agent, or any Lender through the Lenders Agent, may reasonably request.; and
(b) In the good faith judgment of the Agent and the LendersAgent:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsDecember 31, budgets2005, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to Borrower, the 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 litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except as set forth in Schedule 6.1(i))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 to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Regency Centers Lp), Credit Agreement (Regency Centers Corp)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
: (a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
: (i) Counterparts of this Agreement executed by each of the parties hereto;
; (ii) Revolving Notes executed by the Borrower, Borrowers payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
2.11, Competitive Advance Notes executed by the Borrowers payable to each Lender, and the Swingline Note executed by the Borrowers payable to the Agent (which Notes shall be promptly forwarded by the Agent to the applicable Lender); (iii) An The Guaranty executed by each Guarantor existing as of the Effective Date; (iv) A favorable opinion of counsel to the BorrowerLoan Parties, addressed to the Agent Agent, the Lenders and the LendersSwingline Lender, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified addressing such matters as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
Agent may require; (v) A certificate The Governing Documents of good standing each Borrower, each Guarantor and each general partner, managing member (or certificate Person performing similar functions) of similar meaning with respect to the Borrower issued such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person; (vi) A good standing certificate with respect to each Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
organized; (vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect each Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each the officers or other representatives of the officers of the Borrower Borrowers then authorized to deliver Notices of Borrowing, Notices of Continuation and Swingline Borrowings, Notices of Continuation, Notices of Conversion and Competitive Bid Requests and to request the issuance of Letters of Credit;
; (viiviii) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrowers, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
; (viiiix) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
; (x) A letter from the agents under the Existing Agreement providing information regarding the payment in full Compliance Certificate calculated as of amounts outstanding thereunder September 30, 2002; and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
; and (b) In the good faith judgment of the Agent and the Lenders:
: (i) There shall not have occurred or become known to the Agent or any of the Lenders 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 GBP, General Partner, the Borrower Borrowers, the Subsidiaries and its Subsidiaries the other Loan Parties delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
; (ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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 the respective obligations under the Loan Documents to which it is a party;
; (iii) The Borrower Parent, GBP and its the 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower Borrowers or any Subsidiary other Loan Party is a party or by which any of its 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 Borrowers or any other Loan Party to fulfill its their respective obligations under the Loan Documents to which it is a party; and
and (iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Gables Residential Trust), Credit Agreement (Gables Realty Limited Partnership)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, Borrower payable to each Lender (if other than any Lender that has requested by such Lendernot to receive a Revolving Note) and complying with the applicable provisions of Section 2.92.10, and the Swingline Note executed by the Borrower payable to the Agent (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyfavorable opinion of counsel to the Obligors, certified addressed to the Agent, the Lenders and the Swingline Lender, addressing such matters as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationAgent may reasonably require;
(v) A certificate The Governing Documents of good standing the Borrower, each Guarantor and each general partner, managing member (or certificate Person performing similar functions) of similar meaning with respect to the Borrower issued such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vi) A good standing certificate with respect to the Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Unencumbered Assets owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation Continuation, Notices of Conversion and Notices of Conversion Swingline Borrowings and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiiix) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixx) A pro forma Compliance Certificate, dated as of the Effective Date, based on financial results Certificate calculated as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof2013;
(xi) Such due diligence with respect A certificate signed by a Responsible Officer of the Borrower certifying that each Property to be treated as an Unencumbered Asset on the Effective Date satisfies all of the requirements for an Unencumbered Asset set forth in the definition thereof;
(xii) The documentation and other information requested by any Lender that is required by regulatory authorities under the applicable “know your customer” rules and regulations;
(xiii) A copy of the Term Loan Agreement in which the covenants thereunder are conformed to the Unencumbered Pool as covenants set forth herein, in form and substance reasonably satisfactory to the Agent may and the Borrower;
(xiv) Evidence reasonably requiresatisfactory to the Agent that all guaranties provided by the Guarantors listed on Schedule 12.20 have been released under the Borrower’s Senior Notes due 2018 and under all other existing Unsecured Debt of the Borrower and the other Obligors in excess of $35,000,000; and
(xiixv) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the 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, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date 2013 that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(iii) The Borrower Borrower, the other Obligors and its their respective 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Columbia Property Trust, Inc.), Credit Agreement (Columbia Property Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.10. and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by the Parent and any Material Subsidiary existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyAn opinion of the general counsel of the Parent and the other Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, addressing the matters set forth in Exhibit H;
(v) An opinion of ▇▇▇▇▇▇ & Bird, LLP, counsel to the Agent, addressed to the Agent, the Lenders and the Swingline Lender, addressing the enforceability of the Loan Documents and such matters as the Agent shall reasonably request;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary of the Parent with respect to each of the officers of the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which the Parent or the Borrower is a party and to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing and requests for Letters of Credit;
(vii) a certified copy (certified by the Secretary or Assistant Secretary of the Parent) of all necessary action taken by the Parent to authorize the execution, delivery and performance of the Loan Documents to which either the Parent or the Borrower is a party;
(viii) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Parent, the Borrower and each Guarantor, certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, formation of the corporate charter or other formation document of the Borrower as in effect on such date of certificationPerson;
(vix) A certificate a Certificate of good standing Good Standing or certificate of similar meaning with respect to the Parent, the Borrower and each Guarantor (and in the case of a limited partnership, the general partner of such Guarantor) issued as of a recent date by the Secretary of State of the state State of formation of the Borrower each such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vix) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor with respect to each of the officers of the Borrower such Person authorized to execute and deliver the Loan Documents to which the Borrower such Person is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viixi) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Parent, the Borrower and each Guarantor of (i) the by-laws of such Person, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and entity;
(iixii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor of all corporate, partnership, member or other necessary action taken by such Person each Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) The the Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxiv) A a Compliance Certificate, dated as of the Effective Date, based on financial results Certificate calculated as of June 30, 2021 and after 2007 giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;; and
(xxv) A letter a statement from the agents administrative agent under the Existing Credit Agreement providing information regarding the payment in full of all amounts outstanding thereunder and providing for under the termination thereof;
(xi) Such due diligence with respect to Existing Credit Agreement as of the Unencumbered Pool as the Agent may reasonably requireEffective Date; and
(xiixvi) Such such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), 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;
(iii) The Borrower 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Corporate Office Properties Trust), Credit Agreement (Corporate Office 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 following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each Lender (or Designated Lender, if requested by such Lenderapplicable) and complying with the applicable provisions of Section 2.92.11., and the Swingline Note executed by the Borrower;
(iii) The Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) An opinion of counsel to the BorrowerLoan Parties, addressed to the Agent Agent, the Lenders and the LendersSwingline Lender, addressing the matters set forth in form and substance acceptable to Agent’s counselExhibit M;
(ivv) A copyThe articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative state of the Borrower, to be true and complete, formation of the corporate charter or other formation document of the Borrower as in effect on such date of certificationLoan Party;
(vvi) A certificate of good standing or certificate of similar meaning with respect to the Borrower each Loan Party issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectsuch Loan Party;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party with respect to each of the officers of the Borrower such Loan Party authorized to execute and deliver the Loan Documents to which the Borrower such Loan Party is a party, and each and, in the case of the Borrower, the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viiviii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party of (i) the by-laws of such PersonLoan Party, if a corporation, the operating agreement of such PersonLoan Party, if a limited liability company, the partnership agreement of such PersonLoan Party, if a limited or general partnership, or other comparable document of such Loan Party in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixx) A Compliance Certificate, dated Certificate calculated as of the Effective DateDecember 31, based on financial results as of June 30, 2021 and after 2004 (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), and calculations demonstrating that all Indebtedness proposed to be incurred by the Borrower on the Effective DateDate is permitted under each of the Senior Note Indentures and that no default under any of the Senior Note Indentures will exist as of such date;
(xxi) A copy of each of the documents, instruments and agreements evidencing any of the Indebtedness described on Schedule 6.1.(g), in each case certified as true, correct and complete by the chief executive officer or chief financial officer of the Borrower, but only if any such documents, instruments and agreements are not otherwise publicly available;
(xii) A letter from the agents agent under the Existing Credit Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiixiii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, budgets and pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), 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;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Heritage Property Investment Trust Inc), Credit Agreement (Heritage Property Investment Trust Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions terms of Section 2.92.10.
(a) and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by each of counsel to the Borrower, addressed to Guarantors existing as of the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copy, The articles of incorporation of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationMaryland;
(v) A certificate of good standing 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 the Borrower its incorporation and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which 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;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies, certified by the Secretary or Assistant Secretary of the Borrower, of (i) the bylaws of the Borrower and (ii) all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(viii) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the state of formation of such Guarantor;
(ix) A certificate of good standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by the Secretary of State of the state of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(x) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xi) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixii) An opinion of counsel to the Loan Parties addressed to the Administrative Agent, the Lenders and the Swingline Lender, addressing the matters set forth in Exhibit J;
(xiii) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Administrative Agent, the Titled Agents and the Lenders on or prior to the Effective Date, including without limitation, the fees and expenses of counsel to the Administrative Agent;
(ixxiv) A Compliance Certificate, dated as of the Effective Date, based on financial results Certificate calculated as of June 30, 2021 and after 2009 (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);
(xxv) A letter from a Transfer Authorizer Designation Form effective as of the agents Agreement Date;
(xvi) evidence that all indebtedness, liabilities or obligations (other than obligations in respect of Existing Letters of Credit) owing by the Loan Parties under the Existing Credit Agreement providing information regarding the payment shall have been paid in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requireall Liens, if any, securing such indebtedness, liabilities or other obligations have been released; and
(xiixvii) Such such other documents, agreements documents and instruments as the Agent on behalf of Administrative Agent, or any Lender through the Lenders Administrative Agent, may reasonably request.; and
(b) In the good faith judgment of the Agent and the LendersAdministrative 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 which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (National Retail Properties, Inc.), Credit Agreement (National Retail Properties, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each Lender (if requested by such Lender) Borrower and complying with the applicable provisions of Section 2.92.11., and the Swingline Note executed by the Borrower;
(iii) The Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) An opinion of counsel to the BorrowerLoan Parties, addressed to the Agent and the Lenders, in substantially the form and substance acceptable to Agent’s counselset forth in Exhibit M;
(ivv) A copy, The declaration of trust of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative state of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationits incorporation;
(vvi) A certificate of good standing 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 the Borrower its incorporation and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which 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;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary or Assistant Secretary of the Borrower, of (i) the bylaws of the Borrower and (ii) all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(ix) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the state of formation of such Guarantor;
(x) A certificate of good standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by (or other comparable evidence from) the Secretary of State of the state of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by (or other comparable evidence from) each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(xi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the Borrower officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and entity, (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a partyparty and (iii) the articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of such Guarantor;
(viiixiii) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxiv) A Compliance Certificate, dated Certificate calculated as of the Effective DateMarch 31, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require2006; and
(xiixv) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), 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;
(iii) The Borrower 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Federal Realty Investment Trust), Credit Agreement (Federal Realty 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 following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, Borrower payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.12, and the Swingline Note executed by the Borrower payable to the Swingline Lender (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An The Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) The Pledge Agreement executed by the Borrower and each other Obligor that is a party to the Pledge Agreement;
(v) The Contribution Agreement executed by the Borrower and each Guarantor existing as of the Effective Date;
(vi) A favorable opinion of counsel to the BorrowerObligors, addressed to the Agent Agent, the Lenders and the LendersSwingline Lender, in form and substance acceptable to Agent’s counseladdressing such matters as Agent may reasonably require;
(ivvii) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative The Governing Documents of the Borrower, to be true each Guarantor and completeeach general partner, managing member (or Person performing similar functions) of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(viii) A good standing certificate with respect to the Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Borrowing Base Properties owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(viix) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation Continuation, Notices of Conversion and Notices of Conversion Swingline Borrowings and to request the issuance of Letters of Credit;
(viix) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiixi) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixxii) A pro forma Compliance Certificate, dated as of the Effective Date, based on financial results Certificate calculated as of June 3029, 2021 and after 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 Date2011;
(xxiii) A letter from the agents under the Existing Agreement providing information regarding the payment in full Borrowing Base Certificate calculated as of amounts outstanding thereunder and providing for the termination thereofJune 29, 2011 showing compliance with Section 2.13;
(xixiv) Such due diligence Each of the conditions set forth in Section 7.17 shall have been satisfied with respect to the Unencumbered Pool as Collateral;
(xv) Any amendments, modifications or reaffirmations of the Agent may Loan Documents reasonably requirerequested by the Agent; and
(xiixvi) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Borrower, the other Obligors, and its their respective Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Effective Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party; provided, that the investigation of ▇▇▇▇▇ Investment Securities Inc. by the Financial Industry Regulatory Authority (the “FINRA Investigation”) and any censure related thereto shall not be deemed a violation of this provision unless such investigation leads to any significant action or material sanction against, or suspension of, ▇▇▇▇▇ Investment Securities Inc., as reasonably determined by the Requisite Lenders;
(iii) The Borrower Borrower, the other Obligors and its their respective 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Wells Core Office Income Reit Inc)
Initial Conditions Precedent. The effectiveness of this Agreement, and the obligation of Lender to make 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, initial Advance hereunder is subject to the satisfaction or waiver of the following conditions precedent:; provided, however, disbursement of the first Advance shall constitute Lender’s acknowledgement that all of the following conditions have been satisfied or waived.
(a) The Agent Lender shall have received each of the following, in form and substance satisfactory to the AgentLender:
(i) Counterparts counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes the Note executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsela Repayment Guaranty executed by Guarantor;
(iv) A copya Completion Guaranty executed by Guarantor;
(v) a Hazardous Materials Indemnity Agreement executed by Borrower and Guarantor;
(vi) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of Borrower and Guarantor certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, formation of the corporate charter or other formation document of the Borrower as in effect on such date of certificationPerson;
(vvii) A a certificate of good standing (or certificate of similar meaning meaning) with respect to the each of Borrower and Guarantor issued as of a recent date by the Secretary of State of the state State of formation of the Borrower such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(viviii) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) or other comparable document of the Borrower and Guarantor with respect to each of the officers officers, members, managers or partners of the Borrower such Person authorized to execute and deliver the Loan Documents to which the Borrower such Person is a party, and each in the case of Borrower, the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditAuthorized Signatories;
(viiix) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and Guarantor of (iA) the by-laws of such Person, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (iiB) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to a Compliance Certificate calculated as of the Effective Date;
(ixxi) A Compliance Certificate, dated a Borrowing Base Report calculated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to upon the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Dateinitial Borrowing Base Properties;
(xxii) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing with respect to each Project identified on Schedule 4.1(a), all requirements for the termination thereofbeing an Eligible Property have been satisfied;
(xixiii) Such evidence satisfactory to Lender that the Fees, if any, then due diligence and payable under Section 3.2, together with respect all other fees, expenses and reimbursement amounts due and payable to Lender, including without limitation, the Unencumbered Pool as fees and expenses of counsel to Lender, have been paid or will be paid with the Agent may reasonably requirefirst Advance;
(xiv) evidence satisfactory to Lender that Borrower has obtained Property Insurance for each Project in accordance with Section 7.6(b); and
(xiixv) Such such other documents, agreements documents and instruments as the Agent on behalf of the Lenders Lender may reasonably request.
(b) In the good faith judgment of the Agent and the LendersLender:
(i) There shall not have occurred or become known to the Agent or any of the Lenders Lender any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries any Loan Party delivered to the 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 litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1A) result in a Material Adverse Effect or (B) restrain or enjoin, impose burdensome conditions on, or otherwise affect the ability of any Loan Party to fulfill its obligations under the Loan Documents; and
(iii) Borrower and Guarantor shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any Loan Party or their respective properties is bound, except as set forth in Schedule 6.1(i))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 Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of Borrower may only deliver a Utilisation Request once the Lenders to effect or permit Agent has received all 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 following conditions precedent:
documents and other evidence listed in Schedule 4 Part I (a) The Agent shall have received each of the followingInitial Conditions Precedent), in form and substance satisfactory to the Agent:
Agent (iacting on the instructions from the Lenders). The Agent shall notify the Obligors and the other Finance Parties promptly upon being so satisfied. The Lenders will only be obliged to comply with Clause 5.4 (Lenders’ participation) Counterparts in relation to the first Utilisation if, on or prior to the proposed Utilisation Date, the Agent has received originals or certified copies of this Agreement executed by each all of the parties hereto;
documents and other evidence listed in Schedule 4 Part II (ii) Notes executed by Conditions Precedent for the BorrowerFirst Utilisation Date), payable to each Lender (if requested by such Lender) and complying with other than the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to documents which the Agent and (acting on the Lendersinstructions from the Required Majority) has confirmed in writing may be delivered at the Utilisation Date at the latest, in form and substance acceptable satisfactory to Agent’s counsel;
the Agent (ivacting on the instructions from the Required Majority). The Agent shall notify the Obligors and the other Finance Parties promptly upon being so satisfied. The Lenders will only be obliged to comply with Clause 5.4 (Lenders’ participation) A copy, certified as if on the date of a recent date Utilisation Request and on the proposed Utilisation Date: no Default is continuing or would result from the proposed Utilisation; the representations and warranties contained in Clause 20 (Representations and warranties) deemed to be repeated on those dates are true and correct both before and after giving effect to the proposed Utilisation and application of funds from the Utilisation. The conditions specified in this Clause 4 are solely for the benefit of the Finance Parties and may be waived on their behalf in whole or in part and with or without conditions by the appropriate officer Agent (acting on the instructions of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing 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 the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which Required Majority unless it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on non-material matter of administrative or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as technical character where the Agent may reasonably require; and
act in its sole discretion), save for conditions which are comprised by Clause 34.3.2 (xiiExceptions) Such other documents, agreements and instruments as which will be subject to consent from all the Lenders. The Finance Parties shall be notified by the Agent on behalf of the Lenders may reasonably requesta waiver granted pursuant to this Clause 4.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Term Loan and Revolving Credit Facilities Agreement (Seadrill Partners LLC)
Initial Conditions Precedent. The obligation of the Lenders Issuing Bank to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a issue any Letter of Credit, is Credit and the obligation of each Bank to make Advances pursuant to the terms and conditions of this Agreement are subject to the following conditions precedent:
(a) The condition precedent that the Administrative Agent shall have received each on or before the day of the initial Advance (or, if earlier, the day of issuance of the initial Letter of Credit) the following, each dated on or before such day, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts of this This Agreement executed by each of Borrower, each Bank, the parties hereto;
Issuing Bank, and the Administrative Agent, (ii) the Notes (if any) payable to the order of the Banks, respectively, executed by the Borrowerrespective Borrowers, payable to each Lender and (if requested iii) the Guaranty executed by such Lender) and complying with the applicable provisions of Section 2.9;Parent.
(iiib) An opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, in-house counsel to for the Borrower, addressed to the Agent and the LendersBorrowers, in form and substance acceptable reasonably satisfactory to the Administrative Agent’s counsel;.
(ivc) A copyAn opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, certified as of a recent date by counsel for the appropriate officer of Borrowers, in form and substance reasonably satisfactory to the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;Administrative Agent.
(vd) A certificate An opinion of good standing or certificate of similar meaning with respect ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for EOIC, in form and substance reasonably satisfactory to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;Administrative Agent.
(vie) A certificate Certified copies of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Personall governmental approvals, if a corporationany, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person for each Borrower to authorize the execution, delivery and performance of enter into the Loan Documents to which it is a party;party and perform its obligations thereunder.
(viiif) The Fees then due A certificate of the Secretary or an Assistant Secretary of each Borrower certifying (i) the resolutions of the Board of Directors of such Borrower approving this Agreement, the other Loan Documents, and payable under the transactions contemplated hereby, in each case evidencing any necessary company action, (ii) the name and true signature of an agent or agents of each Borrower authorized to sign each Loan Document to which such Borrower is a party and the other documents to be delivered hereunder, and (iii) attached true and correct copies of the Bylaws and Articles of Incorporation (or corresponding organizational documents) of such Borrower.
(g) A certificate of the chief executive officer or the chief financial officer of the Parent certifying that (i) insurance complying with Section 3.6(c5.01(d) is in full force and effect, (ii) no Material Adverse Change has occurred since December 31, 2004, (iii) no Default or Event of Default exists, (iv) all representations and warranties made by the Borrowers in Section 4.01 are correct in all material respects on and as of the date of the initial Advances (other than those representations and warranties that expressly relate solely to a specific earlier date, which shall be correct in all material respects as of such earlier date), and any other Fees payable (v) the attached annual audited financials for the fiscal year ended December 31, 2004 and the attached quarterly unaudited financials for the fiscal quarter ended March 31, 2005 are true and correct copies of such financials, fairly present the financial condition of the Parent as of such dates, and were, to the Agentbest of such officer’s knowledge, the Titled Agents and the Lenders on or prior to the Effective Date;prepared in conformity with GAAP.
(ixh) A Compliance CertificateCertificates of existence, dated as of the Effective Date, based on financial results as of June 30, 2021 good standing and after 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;
(x) A letter qualification from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence appropriate state officials with respect to the Unencumbered Pool Parent, and such corresponding certificates or other documents from Cayman Islands officials or agencies as the Administrative Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably requestrequests with respect to EOIC.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known Evidence of payment by the Borrowers of all fees and disbursements required to be paid by the Borrowers on the date hereof, including the fees and expenses of counsel to the Agent or any of Administrative Agent, the Lenders any eventSyndication Agent, 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan DocumentsJoint Lead Arrangers.
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 following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.10. and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyAn opinion of the general counsel of the Parent and the Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, addressing the matters set forth in Exhibit I;
(v) An opinion of ▇▇▇▇▇▇ & Bird, LLP, counsel to the Agent, addressed to the Agent, the Lenders and the Swingline Lender, addressing the enforceability of the Loan Documents and such matters as the Agent shall reasonably request;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary of the Parent with respect to each of the officers of the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which the Parent or the Borrower is a party and to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing and requests for Letters of Credit;
(vii) a certified copy (certified by the Secretary or Assistant Secretary of the Parent) of all necessary action taken by the Parent to authorize the execution, delivery and performance of the Loan Documents to which either the Parent or the Borrower is a party;
(viii) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Parent, the Borrower and each Guarantor, certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, formation of the corporate charter or other formation document of the Borrower as in effect on such date of certificationPerson;
(vix) A certificate a Certificate of good standing Good Standing or certificate of similar meaning with respect to the Parent, the Borrower and each Guarantor (and in the case of a limited partnership, the general partner of such Guarantor) issued as of a recent date by the Secretary of State of the state State of formation of the Borrower each such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vix) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor with respect to each of the officers of the Borrower such Person authorized to execute and deliver the Loan Documents to which the Borrower such Person is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viixi) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Parent, the Borrower and each Guarantor of (i) the by-laws of such Person, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and entity;
(iixii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor of all corporate, partnership, member or other necessary action taken by such Person each Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) The the Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxiv) A a Compliance CertificateCertificate calculated as of March 31, dated 2005;
(xv) a Borrowing Base Certificate calculated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiixvi) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), 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;
(iii) The Borrower 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan Documents.or
Appears in 1 contract
Sources: Credit Agreement (Corporate Office 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 any Revolving Loans, or the issuance of a Letter of Credit, is subject to 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) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions terms of Section 2.92.1O.
(a) and (b);
(iii) An opinion of Massachusetts counsel to the Borrower, addressed to the Administrative Agent, Documentation Agent and the Lenders, in substantially the form and substance acceptable to Agent’s counselof Exhibit M;
(iv) A copy, all of the documents and information required to be delivered under Section 4.1.(a) with respect to each of the Real Property Assets listed on Schedule 4.1.;
(v) the organizational documents of the Borrower certified as of a recent date by the appropriate applicable Governmental Authority if filed and by a senior officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationif not filed;
(vvi) A certificate of a good standing 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 the Borrower and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viiviii) Copies certified copies (certified by the Secretary or Assistant Secretary of the Borrower) of all action taken by the Borrower's governing body to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) A Guaranty executed by each Guarantor in substantially the form of Exhibit C;
(x) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the state of formation of such Guarantor;
(xi) A certificate of good standing or certificate of similar meaning with respect to each Guarantor which owns one or more Unencumbered Pool Properties issued as of a recent date by the Secretary of State of the state of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which Guarantor is required to be so qualified;
(xii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the Borrower officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xiii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of (i) the by-by- laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiv) The Fees then due A copy of each of the documents, instruments and payable under Section 3.6(c)agreements evidencing any of the Indebtedness described on Schedule 7.1(g) marked with an asterisk on such Schedule and a copy of each Material Contract, certified as true, correct and any other Fees payable to complete by the Agent, chief financial officer of the Titled Agents and the Lenders on or prior to the Effective DateBorrower;
(ixxv) Evidence that all insurance required to be maintained by the Borrower and the other Loan Parties under the terms of the Loan Documents is in effect;
(xvi) The Fees, if any, then due under Section 3.6.;
(xvii) A Compliance Certificate, dated Certificate calculated as of the Effective Datefiscal quarter ending February 28, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require1998; and
(xiixviii) Such other documents, agreements and instruments as the Administrative Agent or the Documentation Agent may reasonably request on behalf of the Lenders may reasonably request.Lenders; and
(b) In the good faith judgment of the Administrative Agent, the Documentation Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent Agents 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 any of the Agent Agents and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), 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;
(iii) The Borrower and its Subsidiaries 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 50 contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its 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 could reasonably be likely expected to have to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Mgi Properties)
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 following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing 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 the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 2024 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Epr Properties)
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 CreditLoans, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions terms of Section 2.9.;
(iii) An the Guaranty executed by each of the Guarantors initially to be a party thereto;
(iv) an opinion of counsel to the Parent, the Borrower, and the Guarantors, addressed to the Agent and the Lenders, in form Lenders and substance acceptable to Agent’s counselcovering the matters set forth on Exhibit G;
(ivv) A copya certificate of incumbency signed by the Secretary or Assistant Secretary of the Parent with respect to each of the officers of the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which the Parent or the Borrower is a party and to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower the Notice of Borrowing, Notices of Conversion and Notices of Continuation;
(vi) a certified copy (certified by the Secretary or Assistant Secretary of the Parent) of all necessary action taken by the Parent to authorize the execution, delivery and performance of the Loan Documents to which either the Parent or the Borrower is a party;
(vii) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Parent, the Borrower and each Guarantor, certified as of a recent date by the appropriate officer Secretary of State of the State of formation in which the Borrower is organized, and a duly authorized officer or similar representative case of the BorrowerParent, to be true PREIT and complete, PREIT-▇▇▇▇▇ and certified as of the corporate charter Effective Date by the Secretary or Assistant Secretary (or other formation document individual performing similar functions) in the case of the Borrower as in effect on such date of certificationParent, PREIT, PREIT-▇▇▇▇▇ and each Guarantor;
(vviii) A certificate a Certificate of good standing Good Standing or certificate of similar meaning with respect to the Parent, the Borrower and each Guarantor (and in the case of a limited partnership, the general partner of such Guarantor) issued as of a recent date by the Secretary of State of the state State of formation of the Borrower each such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(viix) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor with respect to each of the officers of the Borrower such Person authorized to execute and deliver the Loan Documents to which the Borrower such Person is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viix) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Parent, the Borrower and each Guarantor of (i) the by-laws of such Person, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and entity;
(iixi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor of all corporate, partnership, member or other necessary action taken by such Person each Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixii) The Fees the Notice of Borrowing from the Borrower;
(xiii) the Transfer Authorizer Designation effective as of the Agreement Date;
(xiv) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6(c)3.5., together with all other fees, expenses and any other Fees reimbursement amounts due and payable to the Agent, the Titled Agents Agent and any of the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificatefor which payment has been demanded, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requirehave been paid; and
(xiixv) Such such other documents, agreements documents and instruments as the Agent on behalf of Agent, or any Lender through the Lenders Agent, may reasonably request.
(b) In the good faith judgment of the Agent and the LendersAgent:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its the other Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in have a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1A) result in 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
(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 or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except as set forth in Schedule 6.1(i))for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower Borrower, the Parent or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (Pennsylvania Real Estate Investment Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction of the following conditions precedent:
(a) The the Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts counterparts of this Agreement executed by each of the Loan Parties, including, without limitation, each Guarantor, each in its respective capacity as a Guarantor, and all of the other parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each Lender (if requested by such Lenderother than any Lender that has notified the Agent that it has elected not to receive a Revolving Note) and complying with the applicable provisions of Section 2.92.10(a). and the Swingline Note executed by the Borrower;
(iii) An opinion the Guaranty executed by the Parent, each Material Subsidiary existing as of counsel to the BorrowerEffective Date, addressed to each Subsidiary Obligor existing as of the Agent Effective Date and the Lenders, in form and substance acceptable to Agent’s counseleach Other Subsidiary Guarantor;
(iv) A copya favorable opinion or opinions of legal counsel to the Loan Parties, addressed to the Agent, the Lenders, the Swingline Lender and the Issuing Bank, addressing the enforceability of the Loan Documents and such matters as the Agent shall reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument of the Borrower and the Parent, and with respect to each other Loan Party, as requested by the Agent, certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, formation of the corporate charter or other formation document of the Borrower as in effect on such date of certificationLoan Party;
(vvi) A a certificate of good standing (or certificate of similar meaning meaning) with respect to the Borrower Borrower, the Parent, and to the extent requested by the Agent, each other Loan Party, issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and, to the Borrower and a certificate extent requested by the Agent, certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower 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;
(vivii) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party with respect to each of the officers of the Borrower such Loan Party authorized to execute and deliver the Loan Documents to which the Borrower such Loan Party is a party, and each in the case of the officers Borrower, authorized to execute and deliver, on behalf of the Borrower authorized to deliver Borrower, Notices of Borrowing, Notices of Continuation and Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and to request the issuance Notices of Letters of CreditContinuation;
(viiviii) Copies copies certified (or bringdown certifications with respect to Loan Parties other than the Borrower or the Parent, to the extent permitted by the Agent) by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party of (iA) the by-laws of such PersonLoan Party, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (iiB) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party; copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor of all corporate, partnership, member or other necessary action taken by each Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A a Compliance Certificate, dated as of the Effective Date, based Certificate calculated on financial results as of June 30, 2021 and after giving a pro forma basis, giving effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date, for the Parent’s fiscal quarter ending September 30, 2013;
(x) A letter from a closing certificate addressed to the agents under Agent including certifications, as of the Existing Agreement providing information regarding Date, as to the payment matters set forth in full clauses (i) through (iv) of amounts outstanding thereunder Section 5.1(b) and providing for as to such other matters as the termination thereofAgent may reasonably request;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; anda Notice of Borrowing;
(xii) Such the fully executed Fee Letter;
(xiii) evidence that the Borrower has paid to the Agent, for the accounts of the Lenders or for its own account, as applicable, all of the fees and expenses that are due and payable under Section 3.5 as of the Agreement Date or under the Fee Letter.
(xiv) to the extent requested by the 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;
(xv) UCC, and to the extent requested by the Agent, lien, litigation, judgment and bankruptcy, search results from the appropriate jurisdictions for each Loan Party;
(xvi) such other information, documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There there shall not have occurred any material adverse change in the business, assets, operations, condition (financial or become known to otherwise) or prospects of the Agent Parent, the Borrower or any of the Lenders any eventother Loan Party since December 31, condition, situation 2012 or status since the date of the information contained in the financial facts and business projectionsinformation regarding the Parent, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered the other Loan Parties as most recently provided to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse EffectLenders;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1A) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i))Effect, or (2B) 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 no event of default or unmatured event of default shall have occurred and be continuing under any of the Parent’s, the Borrower’s or any other Loan Party’s financial obligations in effect on the Agreement Date, both before and after giving effect to the financing contemplated by this Agreement;
(iv) the Parent, the Borrower and its Subsidiaries each other Loan Party 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 (1A) any Applicable Law or (2B) any agreement, document or instrument to which the Borrower or any Subsidiary Loan Party is a party or by which any of its them or their respective properties is bound, 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 their respective obligations under the Loan Documents to which it is a party;
(v) the Parent, the Borrower and each other Loan Party shall have provided all information requested by the Agent, each Lender and the Issuing Bank in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(ivvi) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents. For purposes of determining compliance with the conditions specified in this Section 5.1(a), each Lender that has executed and delivered this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required thereunder to be consented to, approved by, or acceptable or satisfactory to, such Lender unless the Agent shall have received written notice from such Lender prior to the Agreement Date specifying its objection thereto.
Appears in 1 contract
Sources: Revolving Credit Agreement (First Potomac Realty Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.8;
(iii) An the Account Agreement substantially in the form of Exhibit F, duly executed by the Account Bank, the Borrower and the Agent (the "Cash Account Assignment Agreement");
(iv) the Security Agreement substantially in the form of Exhibit G, duly executed by the Borrower and the Agent (the "Security Agreement");
(v) UCC-1 Financing Statements in a form acceptable for filing with the Secretary of State of Maryland which shall describe the Borrower as debtor and the Agent as secured party with respect to the Collateral;
(vi) insofar as any of the Collateral constitutes instruments, chattel paper, and/or certificated securities, the execution and delivery of custody or other arrangements with the Account Bank pursuant to which such components of the Collateral shall be delivered to the possession of, and subject to the dominion and control of, the Account Bank for the benefit of the Agent;
(vii) an opinion of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower, addressed to the Agent and the Lenders, Lenders substantially in the form of Exhibit H and substance acceptable to Agent’s counselcovering such matters as are customary for financings of the type contemplated by the Loan Documents and such other matters as the Agent may reasonably request;
(ivviii) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary Department of Assessments and Taxation of the State of the state of formation of the Borrower Maryland and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which 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;
(viix) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditConversion;
(viix) Copies copies, certified by the Secretary or Assistant Secretary of the Borrower, of all corporate (or other individual performing similar functionscomparable) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person the Borrower to authorize the execution, delivery and performance of the Loan Documents to which it the Borrower is a party;
(viiixi) The the Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxii) A Compliance Certificate, dated a Monthly Report calculated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use end of the proceeds of the Loans to be funded on the Effective Datemost recent calendar month;
(xxiii) A letter from a Compliance Certificate calculated as of the agents under end of the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereofmost recent calendar quarter;
(xixiv) Such due diligence results satisfactory to the Agent with respect to the Unencumbered Pool as due diligence examination of the Loan Portfolio;
(xv) results satisfactory to the Agent may reasonably requirewith respect to the UCC, Lien, judgment and tax searches conducted with respect to the Borrower; and
(xiixvi) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(ixvii) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(iixviii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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 partyDocuments;
(iiixix) The Borrower 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its 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 to fulfill its obligations under the Loan Documents to which it is a partyDocuments; and
(ivxx) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Technology Investment Capital 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 following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing 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 the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 2017 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) [Reserved];
(xii) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiixiii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The the Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Epr Properties)
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 counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, a Note payable to each Lender (if requested by such Lender) not party to the Original Credit Agreement and a replacement Note payable to each Lender whose Commitment is being increased pursuant to this Agreement, in each case complying with the applicable provisions terms of Section 2.92.13.(a);
(iii) An opinion ratification by the Guarantors and Operating Lessees of counsel their obligations under the Loan Documents to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselwhich they are parties;
(iv) A copysuch amendments to the Security Documents as Administrative Agent may require;
(A) an opinion of ▇▇▇▇▇ Lovells US LLP, counsel to the Borrower and the other Loan Parties, and (B) to the extent required by Administrative Agent, an opinion of local counsel reasonably satisfactory to Administrative Agent, as special counsel to the Loan Parties, each addressed to the Administrative Agent and the Lenders and collectively covering the matters set forth in Exhibit H;
(vi) to the extent required by Administrative Agent, the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer state of organization or similar representative formation of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationPerson;
(vvii) A to the extent required by Administrative Agent, a certificate of good standing (or certificate of similar meaning meaning) with respect to the Borrower each Loan Party issued as of a recent date by the Secretary of State of the state of formation of the Borrower each such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) A to the extent required by Administrative Agent, a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party with respect to each of the officers of the Borrower such Person authorized to execute and deliver the Loan Documents to which the Borrower such Person is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viiix) Copies to the extent required by Administrative Agent, copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party of (iA) the by-laws of such Person, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity (or, in lieu of the foregoing, a certificate of such Secretary or Assistant Secretary (or other individual performing similar functions) that the applicable document or documents delivered on or about the date of the Original Credit Agreement have not been modified or amended and remain in full force and effect) and (iiB) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) The Fees a Compliance Certificate for the Parent Guarantor’s fiscal quarter ended September 30, 2010;
(xi) Intentionally Omitted;
(xii) to the extent required by Administrative Agent, title insurance endorsements to the title insurance policies previously issued to Administrative Agent.
(xiii) to the extent required by Administrative Agent, UCC, tax, judgment and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions indicating that there are no Liens of record with respect to the assets of each such Loan Party other than Permitted Liens;
(xiv) evidence that the Fees, if any, then due and payable under Section 3.6(c)3.5., together with all other fees, expenses and any other Fees 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, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requirehave been paid; and
(xiixv) Such such other documents, agreements documents and instruments as the Agent on behalf of Administrative Agent, or any Lender through the Lenders Administrative Agent, may reasonably request.; and
(b) In the good faith judgment No Default or Event of the Agent and the Lenders:
(i) There Default shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 partyexist; and
(ivc) There shall not have occurred The representations and warranties made or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated deemed made by the Borrower and each other Loan DocumentsParty in this Agreement and in the other Loan Documents delivered pursuant to Section 6.1. shall be true and correct.
Appears in 1 contract
Initial Conditions Precedent. The obligation of any Issuing Bank to issue 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 initial Letter of Credit, Credit and the obligation of each Lender to make its initial Advance pursuant to the terms and conditions of this Agreement is subject to the following conditions precedent:
(a) The condition precedent that the Administrative Agent shall have received each on or before the day of the initial Advance (or, if earlier, the day of issuance of the initial Letter of Credit) the following, each dated on or before such day, in form and substance reasonably satisfactory to the Agent:Administrative Agent (the first day when all such conditions have been satisfied or waived is hereinafter referred to as the “Effective Date”):
(ia) Counterparts of Duly executed signature pages to this Agreement executed (including by each facsimile or other electronic means) in a sufficient number of signed counterparts as requested by the parties hereto;Administrative Agent and any Notes requested pursuant to Section 2.02(f) prior to the Effective Date.
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(vb) A certificate of good standing 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 the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or an Assistant Secretary of each Borrower certifying (or other individual performing similar functionsi) the resolutions of the board of directors of such Borrower with respect to authorizing the execution of each of the officers of the Borrower authorized to execute and deliver the Loan Documents Credit Document to which the such Borrower is a party, (ii) the charter, bylaws or other applicable organizational documents of such Borrower and (iii) all other documents evidencing any necessary company action and governmental, shareholder and third-party consents, approvals and filings, if any, with respect to each such Credit Document and the transactions thereunder.
(c) A certificate of the Secretary or an Assistant Secretary of each Borrower certifying the names and true signatures of the officers (or agents) authorized to sign each Credit Document to be executed by it.
(d) An opinion of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special counsel for Pride, and if applicable, Guarantors, substantially in the form of Exhibit D, and an opinion of ▇▇▇▇▇▇ and Calder, special counsel for BVI Borrower, substantially in the form of Exhibit D-1.
(e) An opinion of the general counsel of Pride, and if applicable, Guarantors, substantially in the form of Exhibit E.
(f) Certificates of existence, good standing and qualification with respect to the Borrowers from appropriate public officials in the jurisdictions of organization of the Borrowers.
(g) A certificate of an officer of each Borrower authorized (i) certifying that the representations and warranties made by such Borrower in each Credit Document are correct, (ii) certifying as to deliver Notices the satisfaction of Borrowingall conditions set forth in this Section 3.01 and (iii) with respect to the certificate for Pride, Notices describing in reasonable detail the insurance maintained by Pride and its Subsidiaries on the date hereof as required by Section 5.01(c) and certifying that such insurance complies with Section 5.01(c) and is in full force and effect.
(h) Evidence of Continuation payment by the Borrowers of all fees and Notices disbursements required to be paid by the Borrowers on the date hereof.
(i) Evidence of Conversion the termination of the Existing Credit Facility and to request the commitments thereunder and payment in full of all amounts owed thereunder (which termination and repayment may be contemporaneous with the satisfaction of the conditions under this Section 3.01 and the application of the proceeds of any Advances and the issuance of any Letters of Credit;Credit that occur on the Effective Date).
(viij) Copies certified All documentation and other information that the Borrowers are required by bank regulatory authorities to deliver to the Issuing Banks, the Lenders and the Administrative Agent under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the Patriot Act, that has been identified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporationIssuing Banks, the operating agreement of such Person, if a limited liability company, Lenders and the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity Administrative Agent and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable notified to the Agent, the Titled Agents and the Lenders on or Borrowers prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Revolving Credit Agreement (Pride International Inc)
Initial Conditions Precedent. The obligation of each Bank to make Advances and the Lenders to effect or permit the occurrence obligation of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter L/C Issuers to issue Letters of Credit, pursuant to the terms and conditions of this Agreement, is subject to the following conditions precedentprecedent that the Administrative Agent shall have received the following, each dated on or before the date hereof, in form and substance reasonably satisfactory to the Administrative Agent:
(a) The Agent shall have received each of the followingThis Agreement, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the BorrowerBorrower and each Bank, and, to the extent requested by any Bank within three (3) Business Days of the closing date hereof, an executed Note payable to each Lender (if requested by the order of such Lender) and complying with the applicable provisions of Section 2.9;Bank, respectively.
(iiib) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer Certified copies of the State in which resolutions of the Board of Directors of the Borrower is organizedapproving this Agreement, each Note, each Letter of Credit Application, each Letter of Credit and each Notice of Borrowing, and a duly authorized officer or similar representative of all documents evidencing other necessary corporate action with respect to each such Loan Document and certified copies of the restated certificate of incorporation and bylaws of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;.
(vc) A certificate of good standing 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 or an Assistant Secretary of the Borrower certifying the names and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each true signatures of the officers of the Borrower authorized to execute and deliver the sign each Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents Document to which it is a party;party and the other documents to be delivered hereunder.
(viiid) The Fees then due A favorable opinion of Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., counsel for the Borrower, to be delivered to, and payable under Section 3.6(cfor the benefit of, the Banks and the Administrative Agent, at the express instruction of the Borrower.
(e) A favorable opinion of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇, Senior Vice President and General Counsel of the Borrower, to be delivered to, and for the benefit of, the Banks and the Administrative Agent, at the express instruction of the Borrower.
(f) A certificate of a Responsible Officer of the Borrower certifying (i) there has not occurred a material adverse change since December 31, 2010 in the consolidated financial condition of the Borrower and its Subsidiaries taken as a whole, (ii) there has not occurred a material adverse change since June 30, 2011 in the business, assets, liabilities (actual or contingent), and any operations or condition (other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixthan financial) A Compliance Certificate, dated as of the Effective DateBorrower and its Subsidiaries taken as a whole, based on and (iii) compliance with the financial results covenant set forth in Section 5.2(c) as of June 30, 2021 and after 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;2011.
(xg) A letter from the agents All documentation required to comply with all “know-your-client” requirements under AML Legislation in relation to each Obligor and this Agreement, as determined by each Total Facility Bank in respect of such Total Facility Bank’s compliance, acting reasonably.
(h) Termination of all commitments and payment of all amounts due under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request2005 Credit Agreement.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any Termination of the Lenders any event, condition, situation or status since the date all commitments and 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations all amounts due under the Loan Documents to which it is a party;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan DocumentsExisting 2010 Credit Agreement.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the 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) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions terms of Section 2.92.8.(a);
(iii) The Guaranty executed by the Parent and each other Guarantor existing as of the Effective Date;
(iv) An opinion of Lowndes, Drosdick, Doster, Kantor & Reed, counsel to the Borrower▇▇▇ ▇▇an ▇▇▇▇ies, addressed to the Agent Administrative Agent, the Arrangers and the Lenders, in substantially the form and substance acceptable to Agent’s counselof Exhibit H;
(ivv) A copyAn opinion of Smith Helms Mulliss & Moore, L.L.P., ▇o▇▇▇ Car▇▇▇▇▇ counsel to the Loan Parties, addressed to the Administrative Agent, the Arrangers and the Lenders, regarding the enforceability of the Agreement and the other Loan Documents under the laws of the State of North Carolina, and such other matters of North Carolina law as the Administrative Agent may reasonably request;
(vi) The certificate of limited partnership of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationDelaware;
(vvii) A certificate of good standing 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 Delaware and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of formation taxation, as applicable) of each state in which the Borrower is required to be so qualified;
(viii) A certificate of incumbency signed by the Secretary or Assistant Secretary of the general partner of the Borrower with respect to each of the officers of the general partner of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party and the officers of the general partner of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(ix) Copies (certified by the Secretary or Assistant Secretary of the general partner of the Borrower) of the limited partnership agreement of the Borrower and of all corporate (or comparable) action taken by the Borrower (and any of the partners of the Borrower) to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(x) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of the Parent and each other Guarantor certified as of a recent date by the Secretary of State of the State of formation of such Guarantor;
(xi) A certificate of good standing or certificate of similar meaning with respect to the Parent and each other Guarantor issued as of a recent date by the Secretary of State of the State of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vixii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower Parent and each other Guarantor with respect to each of the officers of the Borrower such Guarantor authorized to execute and deliver the Loan Documents to which the Borrower such Guarantor is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viixiii) Copies certified by the Secretary or Assistant Secretary of the Parent and each other Guarantor (or other individual performing similar functions) of the Borrower of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiv) A copy of (x) each of the documents, instruments and agreements evidencing any of the Debt described on Schedule 6.1.(h); (y) each Material Contract and (z) each of the documents, instruments and agreements evidencing any of the transactions described on Schedule 9.13., in each case certified as true, correct and complete by the chief executive officer or chief financial officer of the Parent;
(xv) The Fees Fees, if any, then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Administrative Agent, the Titled Agents Arrangers, the Syndication Agent and the Lenders on or prior to Documentation Agent;
(xvi) A Compliance Certificate calculated as of December 31, 1998;
(xvii) An Unencumbered Property Certificate calculated as of the Effective Date;
(ixxviii) A Compliance Certificate, dated as written description of the Effective DateConsolidation outlining the proposed organizational structure, based on financial results as condition, executive management, board of June 30directors (or other comparable body), 2021 and business plan of the Parent and its Subsidiaries, in each case, after giving pro forma effect to the financing contemplated by this Agreement Consolidation, which must be in form and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect substance satisfactory to the Unencumbered Pool as the Agent may reasonably requireLenders; and
(xiixix) Such other documents, agreements and instruments as the Administrative Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent Administrative Agent, the Arrangers and the LendersSyndication Agent:
(i) There shall not have occurred or become known to the Administrative Agent, either Arranger or the Syndication 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, the Arrangers, the Syndication Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in have a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in have a Material Adverse Effect (except as set forth in Schedule 6.1(i)), 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 respective obligations under the Loan Documents to which it is a party;
(iii) The Borrower Borrower, the Parent and its 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary Loan Party is a party or by which any of its 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 respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (CNL American Properties Fund 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 following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each Lender (or Designated Lender, if requested by such Lenderapplicable) and complying with the applicable provisions of Section 2.92.11., and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyAn opinion of legal counsel to the Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, addressing the matters set forth in Exhibit M;
(v) The articles of incorporation of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative state of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationits incorporation;
(vvi) A certificate of good standing 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 the Borrower its incorporation and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which 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;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary or Assistant Secretary of the Borrower, of (i) the bylaws of the Borrower and (ii) all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(ix) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the state of formation of such Guarantor;
(x) A certificate of good standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by the Secretary of State of the state of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(xi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the Borrower officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) a certificate from a Responsible Officer of the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects and (y) immediately after giving effect to the transactions contemplated by this Agreement, no Default or Event of Default shall exist;
(xiv) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxv) A Compliance Certificate, dated Certificate calculated as of the Effective DateMarch 31, based on financial results as of June 30, 2021 and after 2007 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requireAgreement); and
(xiixvi) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.;
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), 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;
(iii) The Borrower 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (UDR, Inc.)
Initial Conditions Precedent. The obligation of each Bank to make Advances and the Lenders to effect or permit the occurrence obligation of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter L/C Issuers to issue Letters of Credit, pursuant to the terms and conditions of this Agreement, is subject to the following conditions precedentprecedent that the Administrative Agent shall have received the following, each dated on or before the date hereof, in form and substance reasonably satisfactory to the Administrative Agent:
(a) The Agent shall have received each of the followingThis Agreement, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the BorrowerBorrower and each Bank, and, to the extent requested by any Bank within three (3) Business Days of the Closing Date, an executed Note payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;Bank, respectively.
(iiib) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer Certified copies of the State in which resolutions of the Board of Directors of the Borrower is organizedapproving this Agreement, each Note, each Letter of Credit Application, each Letter of Credit and each Notice of Borrowing, and a duly authorized officer or similar representative of all documents evidencing other necessary corporate action with respect to each such Loan Document and certified copies of the restated certificate of incorporation and bylaws of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;.
(vc) A certificate of good standing the Corporate Secretary, Deputy Corporate Secretary or certificate of similar meaning with respect to the Borrower issued as of a recent date by the an Assistant Secretary of State of the state of formation of the Borrower certifying the names and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each true signatures of the officers of the Borrower authorized to execute and deliver the sign each Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents Document to which it is a party;party and the other documents to be delivered hereunder.
(viiid) A favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, to be delivered to, and for the benefit of, the Banks and the Administrative Agent, at the express instruction of the Borrower.
(e) A favorable opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Executive Vice President and General Counsel of the Borrower, to be delivered to, and for the benefit of, the Banks and the Administrative Agent, at the express instruction of the Borrower.
(f) A certificate of a Responsible Officer of the Borrower certifying (i) there has not occurred a material adverse change since December 31, 2018 in the consolidated financial condition of the Borrower and its Subsidiaries taken as a whole, (ii) there has not occurred a material adverse change since March 31, 2019 in the business, assets, liabilities (actual or contingent), operations or condition (other than financial) of the Borrower and its Subsidiaries taken as a whole, and (iii) compliance with the financial covenant set forth in Section 5.2(c) as of March 31, 2019.
(g) (i) At least three days prior to the Closing Date, 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, to the extent requested in writing of the Borrower at least 10 days prior to the Closing Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least three days prior to the Closing Date, any Bank that has requested, in a written notice to the Borrower at least 10 days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification.
(h) Termination of all commitments and payment of all amounts due under the Existing 2015 Credit Agreement.
(i) The Fees then Administrative Agent, the Banks and the Arrangers shall have received all fees and amounts agreed to be paid by the Borrower that are due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Closing Date, based on financial results as of June 30and, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the 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 Agent and the Lenders extent invoiced at least two Business Days prior to the Agreement Date that has had Closing Date, reimbursement or could reasonably payment of all out-of-pocket expenses agreed to be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of paid by the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be that are required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with be reimbursed or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which paid by the Borrower or any Subsidiary is a party or by which any hereunder (including reasonable fees, charges and disbursements of 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP pursuant 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 transactions contemplated by the Loan DocumentsSection 8.4).
Appears in 1 contract
Initial Conditions Precedent. The obligation of On or before the Lenders to effect or permit the occurrence of the first Credit Event hereunderInitial Conditions Precedent Deadline, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:precedent (the "Initial Conditions Precedent") shall be satisfied, and if each is not satisfied by the Initial Conditions Precedent Deadline, this Agreement may be terminated by either Party upon written notice to the other Party delivered within thirty (30) days after the Initial Conditions Precedent Deadline (provided that no such notice may be given solely for the failure of the condition set forth in clause (c) until the date ninety (90) days after the Initial Conditions Precedent Deadline):
(a) The Agent Seller shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts obtained approval of this Agreement executed by each its Board of Directors (the adequacy of which shall be determined by Seller in its sole discretion) and, if advisable or necessary, by the Board of Directors of its ultimate corporate parent, which approval may, for the avoidance of doubt, be expressly subject to the Board of Directors' confirmation of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer satisfaction of the State condition precedent in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
clause (vd) A certificate of good standing 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 the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably requestbelow.
(b) In Buyer shall have obtained approval of this Agreement by its Board (the good faith judgment adequacy of which shall be determined by Buyer in its sole discretion), which approval may, for the avoidance of doubt, be expressly subject to the Board confirmation of the Agent satisfaction of the condition precedent in clause (d) below.
(c) Buyer, Seller and Marketer shall have entered into the Marketing and Services Agreement and Buyer shall have entered into the Management Agreements; and.
(d) The IURC shall have issued the IURC Order and each of the Seller and the Lenders:Buyer shall be satisfied with the contents of the IURC Order.
(e) Seller shall have obtained a Conditional Commitment from the DOE to provide the DOE Guaranteed Financing in an amount sufficient for Seller to finance the construction of the Plant, the commercial terms (i.e., interest rate, tenor, principal amount, coverage ratios and reserve requirements) of which (i) There Buyer shall not have occurred or become known confirmed to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in be consistent with the financial model provided by Seller to Buyer for the Project and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding are satisfactory to Buyer in its sole discretion.
(f) Seller shall be pending or threatened have delivered to Buyer a certificate of the President of Seller which could reasonably be expected to (1) result in a Material Adverse Effect (except as certifies that all the representations and warranties of Seller set forth in Schedule 6.1(i)Section 6.3 (Representations and Warranties of Seller) are, after giving effect to the updates and/or material changes described in Section 6.16 (Updates of Diligence Information), or true and correct in all material respects, (2other than any representation and warranty which is qualified by materiality shall be true and correct in all respects) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability as of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have Initial Conditions Precedent Date as if made or given all necessary filings and notices, by Seller as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan Documentsdate.
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 following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the AgentLenders:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) With respect to any Lender requesting Notes executed by pursuant to SECTION 2.11(b), a Revolving Note, in the Borrowerform of EXHIBIT E-1, one payable to each such requesting Lender (if requested by such Lender) and complying with as the applicable provisions of Section 2.9case may be);
(iii) If requested by Swing Line Lender pursuant to SECTION 2.11(b), a Swing Line Note in the form of EXHIBIT E-2, payable to Swing Line Lender;
(iv) Copies (certified by the Secretary or Assistant Secretary of Borrower) of the Articles of Incorporation and Bylaws of Borrower;
(v) An opinion of Sut▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Bre▇▇▇▇ ▇▇P, counsel to the Borrower, addressed to the Administrative Agent and the Lenders, in substantially the form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing 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 the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse EffectEXHIBIT F;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, LC Requests, Notices of Continuation Continuation, and Notices of Conversion and to request the issuance of Letters of CreditConversion;
(vii) Copies (certified by the Secretary or Assistant Secretary (or other individual performing similar functionsof Borrower) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary corporate action taken by such Person Borrower to authorize the execution, delivery delivery, and performance of the Loan Documents to which it is a partyDocuments;
(viii) A copy of each of the documents, instruments, and agreements evidencing any of the Indebtedness described on SCHEDULE 6.1(g)and a copy of each Material Contract described on SCHEDULE 6.1(h), certified as true, correct, and complete by the chief financial officer of Borrower; SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(ix) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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 DateSECTION 3.8;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full Compliance Certificate calculated as of amounts outstanding thereunder and providing for the termination thereofMarch 31, 2001;
(xi) Such due diligence Payment by Borrower of all outstanding Indebtedness owed to any Non-Continuing Lender, if any, under the Existing Agreement, together with respect a payoff letter in form and substance reasonably acceptable to the Unencumbered Pool as the Agent may reasonably require; andAdministrative Agent.
(xii) Such Repayment of all accrued and unpaid interest under the Existing Agreement and repayment of all unpaid fees and other documents, agreements and instruments as amounts payable under the Agent on behalf of the Lenders may reasonably requestExisting Agreement.
(bxiii) In the good faith judgment A certificate from Borrower (in form and substance satisfactory to Administrative Agent), certifying that as of the Agent and the LendersEffective Date:
(iA) There there shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation situation, or status since the date of the information contained in (i) the financial and business projections, budgets, pro forma data data, and forecasts concerning the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Effective Date that or (ii) the facts or information represented or provided to Lenders prior to the Effective Date as set forth in Borrower's most recent 10-K and 10-Q or represented or provided by Borrower in the meeting with the Lenders conducted on June 15, 2001, which event, condition, situation, or status has had or could reasonably be expected to result in a Material Adverse Effectmaterial adverse change in the business, assets, liabilities (actual or contingent), operations, condition (financial or otherwise), or prospects of Borrower and its Subsidiaries, taken as a whole;
(iiB) No there is no litigation, action, suit, investigation investigation, or other arbitral, administrative administrative, or judicial proceeding shall be pending or threatened which could reasonably be expected to (1x) result in a Material Adverse Effect or (y) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of Borrower to fulfill its obligations under the Loan Documents; and
(C) Borrower and 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 (x) any Applicable Law or (y) any agreement, document, or instrument to which Borrower or any Subsidiary is a party or by which any of them or their respective properties is bound (including without limitation, the Senior Note Agreements), except as set forth in Schedule 6.1(i))for such approvals, consents, waivers, filings, and notices the receipt, making, or giving of 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 to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 partyDocuments; and
(ivxiv) There shall not have occurred or exist any Such other material disruption documents, agreements and instruments as Administrative Agent on behalf of financial or capital markets that could the Lenders may reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.request. SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the AgentLenders:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions terms of Section 2.9SECTIONS 2.11(a) and 2.11(b);
(iii) Copies (certified by the Secretary or Assistant Secretary of Borrower) of the Articles of Incorporation and Bylaws of Borrower; ALLIED AMENDED AND RESTATED CREDIT AGREEMENT
(iv) An opinion of Suth▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇ren▇▇▇ ▇▇▇, counsel to the Borrower, addressed to the Administrative Agent and the Lenders, in substantially the form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationEXHIBIT F;
(v) A certificate of good standing 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 the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, LC Requests, Notices of Continuation Continuation, and Notices of Conversion and to request the issuance of Letters of CreditConversion;
(viivi) Copies (certified by the Secretary or Assistant Secretary (or other individual performing similar functionsof Borrower) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary corporate action taken by such Person Borrower to authorize the execution, delivery delivery, and performance of the Loan Documents to which it is Documents;
(vii) A copy of each of the documents, instruments, and agreements evidencing any of the Indebtedness described on SCHEDULE 6.1(g) and a partycopy of each Material Contract described on SCHEDULE 6.1(h), certified as true, correct, and complete by the chief financial officer of Borrower;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective DateSECTION 3.8;
(ix) A Compliance Certificate, dated Certificate calculated as of the Effective DateMarch 31, based on financial results as of June 30, 2021 and after 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 Date2000;
(x) A Payment by Borrower of all outstanding Indebtedness owed to any Non-Continuing Lender under the Existing Agreement, together with a payoff letter from the agents in form and substance reasonably acceptable to Administrative Agent.
(xi) Repayment of all accrued and unpaid interest under the Existing Agreement providing information regarding and repayment of all unpaid fees and other amounts payable under the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; andExisting Agreement.
(xii) Such other documents, agreements and instruments as the Administrative Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Administrative Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders Lenders, from and including December 31, 1999, any event, condition, situation 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 investigation, or other arbitral, administrative administrative, or judicial proceeding shall be pending or threatened which could reasonably be expected to (1A) 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 Borrower to fulfill its obligations under the Loan Documents; ALLIED AMENDED AND RESTATED CREDIT AGREEMENT
(iii) Borrower and its Subsidiaries shall have received all approvals, consents, and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with, or violation of (A) any Applicable Law or (B) any agreement, document, or instrument to which Borrower or any Subsidiary is a party or by which any of them or their respective properties is bound, except as set forth in Schedule 6.1(i))for such approvals, consents, waivers, filings and notices the receipt, making, or giving of 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 to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 partyDocuments; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) : The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each applicable Lender (if requested by such Lender) and complying with the applicable provisions terms of Section 2.92.12.(a);
(iii) An the Guaranty executed by each of the Guarantors initially to be a party thereto;
(iv) Pledge of Membership Interest
(v) Pocket Mortgage
(vi) Assignment of Mortgage Note, if any
(vii) an opinion of counsel to the BorrowerBorrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders, Lenders and covering the matters set forth in form and substance acceptable to Agent’s counselExhibit G;
(ivviii) A copyTitle, survey, and leases for each Borrowing Base Property (as ordered by the Borrower)
(ix) property inspections, appraisals and environmental assessments and reports for each of the Borrowing Base Properties (as ordered by the Lender).
(x) Certificate of the Borrower certifying that it has not received a condemnation notice and to its knowledge there is not threatened condemnation on any of the Borrowing Base Properties.
(xi) Environmental Indemnity Agreement
(xii) Insurance for each Borrowing Base Property (including but not limited to hazard, liability, rent loss and flood insurance (if applicable)) as specifically described on Exhibit H attached hereto;
(xiii) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative state of the Borrower, to be true and complete, formation of the corporate charter or other formation document of the Borrower as in effect on such date of certificationLoan Party;
(vxiv) A a certificate of good standing (or certificate of similar meaning meaning) with respect to the Borrower each Loan Party issued as of a recent date by the Secretary of State of the state of formation of the Borrower each such Loan Party and a certificate 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 the Borrower 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;
(vixv) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party with respect to each of the officers of the Borrower such Loan Party authorized to execute and deliver the Loan Documents to which the Borrower such Loan Party is a party, and each in the case of the officers Borrower, authorized to execute and deliver on behalf of the Borrower authorized to deliver Notices of Borrowing, Notices requests for Letters of Continuation Credit, and Notices of Conversion and to request the issuance of Letters of CreditContinuation;
(viixvi) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party of (iA) the by-laws of such PersonLoan Party, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (iiB) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixvii) The a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending September 30, 2010;
(xviii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xix) evidence that the Fees then due and payable under Section 3.6(c)3.5., together with all other fees, expenses and any other Fees reimbursement amounts due and payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Administrative Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any eventLenders, conditionincluding without limitation, situation or status since the date reasonable fees and expenses of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered counsel to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse EffectAdministrative Agent, have been paid;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders each Issuing Bank to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a issue any Letter of Credit, is Credit and the obligation of each Bank to make Advances pursuant to the terms and conditions of this Agreement are subject to the following conditions precedent:
(a) The condition precedent that the Administrative Agent shall have received each on or before the day of the initial Advance (or, if earlier, the day of issuance of the initial Letter of Credit) the following, each dated on or before such day, in form and substance satisfactory to the Agent:Administrative Agent (the day when all such conditions have been satisfied or waived is herein referred to as the "Effective Date"):
(i) Counterparts of this This Agreement executed by each of Borrower, each Bank, each Issuing Bank, and the parties hereto;
Administrative Agent, (ii) the Notes (if any) payable to the order of the Banks, respectively, executed by the Borrowerrespective Borrowers, payable to each Lender and (if requested iii) the Guaranty executed by such Lender) the Parent, Global, and complying with the applicable provisions of Section 2.9;EII.
(iiib) An opinion of R▇▇▇▇▇ ▇. ▇▇▇▇▇, in-house counsel to for the Borrower, addressed to the Agent and the LendersLoan Parties, in form and substance acceptable reasonably satisfactory to the Administrative Agent’s counsel;.
(ivc) A copyAn opinion of Gardere W▇▇▇▇ ▇▇▇▇▇▇ LLP, certified as of a recent date by counsel for the appropriate officer of Loan Parties, in form and substance reasonably satisfactory to the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;Administrative Agent.
(vd) A certificate An opinion of good standing or certificate of similar meaning with respect M▇▇▇▇▇ and Calder, Cayman Islands counsel for the Loan Parties, in form and substance reasonably satisfactory to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;Administrative Agent.
(vie) A certificate An opinion of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver B▇▇▇▇ & M▇▇▇▇▇▇▇, U.K. counsel for the Loan Documents Parties, in form and substance reasonably satisfactory to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;Administrative Agent.
(viif) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) Certified copies of the Borrower of (i) the by-laws of such Personall governmental approvals, if a corporationany, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person for each Borrower to authorize the execution, delivery and performance of enter into the Loan Documents to which it is a party;party and perform its obligations thereunder.
(viiig) The Fees then due A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying (i) the resolutions of the Board of Directors of such Loan Party approving this Agreement, the other Loan Documents, and payable under the transactions contemplated hereby, in each case evidencing any necessary company action, (ii) the name and true signature of an agent or agents of such Loan Party authorized to sign each Loan Document to which such Loan Party is a party and the other documents to be delivered hereunder, and (iii) attached true and correct copies of the Bylaws and Articles of Incorporation (or corresponding organizational documents) of such Loan Party.
(h) A certificate of the chief executive officer or the chief financial officer of the Parent certifying that (i) insurance complying with Section 3.6(c5.01(d) is in full force and effect, (ii) no Material Adverse Change has occurred since December 31, 2009, (iii) no Default or Event of Default exists, (iv) all representations and warranties made by the Borrowers in Section 4.01 are correct in all material respects on and as of the date of the initial Advances (other than those representations and warranties that expressly relate solely to a specific earlier date, which shall be correct in all material respects as of such earlier date), and any other Fees payable (v) the annual audited financials for the fiscal year ended December 31, 2009 and the quarterly unaudited financials for the fiscal quarter ended March 31, 2010, in each case delivered to the Agent, the Titled Agents and the Lenders on or Administrative Agent prior to the Effective Date;, are true and correct copies of such financials, fairly present the financial condition of the Parent as of such dates, and were, to the best of such officer's knowledge, prepared in conformity with GAAP.
(ixi) A Compliance CertificateCertificates of existence, dated good standing and qualification from appropriate state officials with respect to EII, such corresponding certificates or other documents from Cayman Islands officials or agencies as the Administrative Agent reasonably requests with respect to EOIC and Global, and such corresponding certificates or other documents from English officials or agencies as the Administrative Agent reasonably requests with respect to the Parent and EUL.
(j) Evidence of payment by the Borrowers of all fees and disbursements required to be paid by the Borrowers on the Effective Date, based on financial results as including the fees and expenses of June 30, 2021 and after giving pro forma effect counsel to the financing contemplated by this Agreement Administrative Agent, the Syndication Agents, the Co-Documentation Agents and the use Joint Lead Arrangers.
(k) Evidence of appointment by each of the proceeds Parent, EUL, Global, and EOIC of the Loans to be funded on the Effective Date;CT Corporation System as its domestic process agent in accordance with Section 8.14.
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiil) Such other documents, governmental certificates, conditions, agreements and instruments lien searches as the Administrative Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Ensco PLC)
Initial Conditions Precedent. The obligation of the Lenders Lender Parties to effect any Borrowing or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a to issue any Letter of Credit, Credit is subject to the following conditions precedent:
(a) The condition precedent that the Administrative Agent shall have received each on or before the day of the first Borrowing or Letter of Credit all of the following, each dated (unless otherwise indicated) as of the date hereof, in form and substance satisfactory to each Lender:
(a) The Notes, properly executed on behalf of the AgentBorrower.
(b) The Guaranty, duly executed by each Subsidiary Obligor.
(c) The Security Agreement, properly executed on behalf of each Obligor, together (subject to Section 3.3) with:
(i) Counterparts of this Agreement executed by Financing statements with respect to each Obligor to be filed in each jurisdiction which, in the opinion of the parties hereto;Administrative Agent, is reasonably necessary to perfect the Liens created by the Security Agreement, to the extent such Liens can be perfected by filing.
(ii) Notes executed by Current searches of appropriate filing offices in each jurisdiction in which any Obligor is organized, has an office or otherwise conducts business showing that no state or federal tax liens have been filed and remain in effect against the BorrowerBorrower or any Subsidiary, payable and that no financing statements or other notifications or filings have been filed and remain in effect against the Borrower or any Subsidiary except (A) to each Lender perfect Liens not prohibited under Section 6.1, and (if requested by such LenderB) and complying with the applicable provisions of Section 2.9;as set forth in Schedule 4.11.
(iii) An opinion Original stock certificates (or other applicable evidence of counsel to ownership) evidencing all issued and outstanding Capital Stock of each Subsidiary Obligor and not less than 65% of the BorrowerCapital Stock of each Applicable Foreign Subsidiary, addressed to together with stock powers executed in blank by the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;applicable owner of such Capital Stock.
(iv) A copy, certified as Evidence of a recent date all insurance required by the appropriate terms of the Security Agreement, including but not limited to certificates and loss payable endorsements showing the Administrative Agent, for the benefit of the Lender Parties, as additional insured and lender’s loss payee thereunder.
(d) Financial statements of the Borrower for the 12-month period ending March 31, 2008, together with a Compliance Certificate with respect to such financial statements, duly executed by the chief financial officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;.
(ve) A certificate of good standing 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 the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) secretary of each state in which 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;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of Obligor (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize certifying that the execution, delivery and performance of the Loan Documents and other documents contemplated hereunder to which it such Obligor is a party;party have been duly approved by all necessary action of the Governing Board of such Obligor, and attaching true and correct copies of the applicable resolutions granting such approval, (ii) certifying that attached to such certificate are true and correct copies of the Organizational Documents of such Obligor, together with such copies, and (iii) certifying the names of the officers of such Obligor that are authorized to sign the Loan Documents and other documents contemplated hereunder, including (in the case of the Borrower) requests for Borrowings and Letters of Credit, together with the true signatures of such officers. The Lender Parties may conclusively rely on such certificate until they shall receive a further certificate of the Secretary or Assistant Secretary of such Obligor canceling or amending the prior certificate and submitting the signatures of the officers named in such further certificate.
(viiif) The Fees then due Certificates of good standing of each Obligor, dated not more than ten days before such date.
(g) A signed copy of an opinion of counsel for the Borrower, addressed to the Lender Parties as to matters referred to in Sections 4.1, 4.2, 4.3 and payable under Section 3.6(c)4.7, and any as to such other Fees payable matters as the Lender Parties may reasonably request, with that opinion being acceptable to each Lender’s counsel. In the case of Section 4.7, the opinion may be to the Agentknowledge of such counsel and may be made without regard to products liability and intellectual property litigation, and, in the Titled Agents case of Section 4.3, insofar as it relates to enforcement of remedies, it may be subject to applicable bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally from time to time, and the Lenders on or prior to the Effective Date;usual equity principles.
(ixh) A Compliance Certificate, dated All fees required to be paid as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by date hereof under this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan DocumentsFee Letter.
Appears in 1 contract
Sources: Credit Agreement (Arctic Cat Inc)
Initial Conditions Precedent. The obligation obligations of the Lenders Banks to effect make the Loans pursuant to the initial Borrowing Request, to advance the Term Loan on the Funding Date or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of to issue a Letter of Credit, is Credit on the Closing Date are subject to satisfaction of the following conditions precedentprecedent on the Funding Date:
(a) The this Agreement in form and substance satisfactory to the Agent and its counsel shall have been duly executed and delivered to the Agent by the Company and MacDermid Imaging;
(b) the Notes shall have been duly executed and delivered to the Agent by the applicable Borrowers;
(c) the Agent shall have received Certificates of duly authorized officers of the Company and MacDermid Imaging certifying that the following statements shall be true as of the Funding Date:
(i) the representations and warranties contained in Article 5, and in the case of a Borrowing by an Eligible Subsidiary, Section 4.5, and the representations and warranties made by the Guarantors in Section of the Guaranty, are true and correct in all material respects on and as of the date of such Loans or the issuance of such Letter of Credit as though made on and as of such date (unless they specifically related to an earlier date); and
(ii) no Default or Event of Default has occurred and is continuing, or would result from such Loans or the issuance of such Letter of Credit; and
(d) an Authorization Letter in form and substance satisfactory to the Agent and its counsel shall have been duly executed and delivered to the Agent by each of the followingCompany, MacDermid Imaging and as applicable, any Eligible Subsidiary;
(e) the Guaranty, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement Agent and its counsel shall have been duly executed and delivered to the Agent by each of the parties heretoGuarantors;
(iif) Notes executed by all amounts outstanding under the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9Existing Credit Facility shall have been repaid;
(iiig) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing 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 the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of Company and MacDermid Imaging, dated the Borrower authorized Funding Date, shall have been delivered to execute and deliver the Loan Documents Agent attesting to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary corporate action taken by such Person to authorize the Company and MacDermid Imaging, including resolutions adopted by their respective Boards of Directors authorizing the execution, delivery and performance of the Loan Facility Documents and each other document to which it is a partybe delivered pursuant to this Agreement and certifying the names and true signatures of the officers of the Company and MacDermid Imaging, authorized to sign the Facility Documents and the other documents to be delivered by the Company and MacDermid Imaging, under this Agreement;
(viiih) The Fees then due and payable under Section 3.6(c)a certificate of a duly authorized officer of the Company, and any other Fees payable dated the Funding Date, shall have been delivered to the AgentAgent setting forth the calculation of the ratio for the twelve- month period ending September 30, 1995, of (i) the Titled Agents Debt of the Company and its Consolidated Subsidiaries on a consolidated basis adjusted to include the Debt of the Division during such period as reflected in the Division's internally prepared financial reports and the Lenders Debt incurred pursuant to this Agreement on or prior the Funding Date to (ii) Consolidated EBITDA adjusted to include the Effective Dateearnings before interest, taxes, depreciation and amortization of the Division for such period minus Consolidated Capital Expenditures adjusted to include capital expenditures of the Division during such period;
(ixi) A Compliance Certificate, a favorable opinion of counsel for the Company and MacDermid Imaging dated as of the Effective Funding Date, based on financial results in substantially the form of EXHIBIT E and as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool such other matters as the Agent may reasonably require; andrequest shall have been delivered to the Agent;
(xiij) Such other documentssince September 30, agreements 1995, there has been no material adverse change in the business, financial position or results of operations of the Hercules Division from that reflected in the Monthly Management Report and instruments as no event shall have occurred (and the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to aware of conditions) which the Agent or any Bank reasonably determines could have a material adverse effect on (i) the operations, assets or prospects of the Lenders any event, condition, situation or status since Company and the date of the information contained Hercules Division from those reflected in the financial and business projectionsSeptember 30, budgets1995 Monthly Management Report, pro forma data and forecasts concerning taken as a whole, or (ii) any Borrower's ability to meet its obligations under any Facility Document;
(k) the Borrower and its Subsidiaries delivered Agent shall have received evidence satisfactory to the Agent that each Borrower and the Lenders prior Hercules is in compliance in all material respects with all foreign and U.S. federal, state and local laws (including laws relating to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effectenvironment);
(iil) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding the Agent shall have received phase one and phase two environmental assessments of the properties of the Hercules Division which shall be pending or threatened which could reasonably be expected satisfactory to (1) result the Agent in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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 partysole discretion;
(iiim) The Borrower and its Subsidiaries MacDermid Imaging shall have received all approvals, consents and waiversa credit at closing (subject to subsequent adjustment as contemplated by the Purchase Agreement) of not less than $30,000,000 against the purchase price paid to Hercules Inc. pursuant to the Purchase Agreement from the issuance of its preferred stock, and shall have made or given all necessary filings the terms and notices, as conditions of such preferred stock shall be required satisfactory to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of Agent in 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; andsole discretion;
(ivn) 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 DocumentsPurchase Agreement shall have been consummated;
(o) the audited financial statements of the Company and its Consolidated Subsidiaries for the fiscal year ending March 31, 1995 shall have been delivered to the Agent;
(p) the Agent shall have received a Consent and Acknowledgement Agreement relating to the Preferred Stock in form and substance satisfactory to the Agent from Hercules Incorporated agreed to by the Company and MacDermid Imaging;
(q) the Agent shall have received audited financial statements for the Hercules Division as of December 31, 1994, December 31, 1993, and December 31, 1992; and
(r) the Agent shall have received such other certificates, opinions and information as the Agent shall reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Macdermid Inc)
Initial Conditions Precedent. The obligation of the Lenders Banks to effect make any Advance or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a issue any Letter of Credit, Credit is subject to the following conditions precedent:
(a) The condition precedent that the Agent shall have received each on or before the day of the first Advance or Letter of Credit (and, in any event, not later than May 14, 2004) all of the following, in form and substance satisfactory to the Agenteach Bank:
(ia) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes This Agreement, duly executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and each of the Lenders, in form and substance acceptable to Agent’s counsel;Banks.
(ivb) A copyThe Notes, certified as of a recent dated the date by the appropriate officer of the State in which the Borrower is organizedhereof, and a duly authorized officer or similar representative properly executed on behalf of the Borrower.
(c) The Fee Letters, to be true and complete, properly executed on behalf of the corporate charter or other formation document of the Borrower as in effect on such date of certification;Borrower.
(vd) A certificate of good standing the secretary 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 an assistant secretary of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize certifying that the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c)other documents contemplated hereunder have been duly approved by all necessary action of the Board of Directors of the Borrower, and attaching true and correct copies of the applicable resolutions granting such approval, (ii) certifying that attached to such certificate are true and correct copies of the Organizational Documents of the Borrower, together with such copies, and (iii) certifying the names of the officers of the Borrower that are authorized to sign the Loan Documents and other documents contemplated hereunder, together with the true signatures of such officers; all of the foregoing being accompanied by any other Fees payable information required by Section 326 of the USA PATRIOT ACT or necessary for the Agent or any Bank to verify the Agent, identity of the Titled Agents and Borrower as required by Section 326 of the Lenders on USA PATRIOT Act which is requested in writing by the Agent or such Bank prior to the Effective Date;date of this Agreement.
(ixe) A Compliance Certificatecertificate of good standing of the Borrower, dated as not more than twenty days before such date.
(f) Copies of order(s) of the Effective DatePublic Utilities Commission of the State of Colorado approving the execution, based on financial results as delivery and performance by the Borrower of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower party and 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 and thereby.
(g) Signed copies of opinions of counsel for the occurrence Borrower, addressed to the Banks in substantially the forms of Exhibit D hereto.
(h) All fees required to be paid as of the date hereof under this Agreement or any default underFee Letter.
(i) Evidence that concurrently with the effectiveness of this Agreement, conflict all amounts (other than (i) reimbursement obligations with or violation respect to the Transitional Letters of Credit and (1ii) any Applicable Law other amounts waived by the requisite lenders under the Prior Credit Agreement) payable under the Prior Credit Agreement will be paid and the commitments thereunder will be terminated.
(j) Such other documents as the Agent or (2) any agreement, document the Required Banks may deem necessary or instrument advisable in connection with the credit facility evidenced hereby and which are requested in a writing delivered to which the Borrower or any Subsidiary is a party or by which any prior to the date of 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 transactions contemplated by the Loan Documentsthis Agreement.
Appears in 1 contract
Sources: Credit Agreement (Xcel Energy 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 counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each applicable Lender (including any Designated Lender, if applicable), other than any Lender that has requested by such Lender) that it not receive Notes, and complying with the applicable provisions terms of Section 2.92.11.
(a) and the Swingline Note executed by the Borrower;
(iii) An opinion opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the BorrowerBorrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, the certificate or articles of incorporation of the Borrower certified as of a recent date by the appropriate officer Secretary of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationMaryland state;
(v) A a certificate of good standing (or certificate of similar meaning meaning) with respect to the Borrower issued as of a recent date by the Secretary of State of the state State of formation of the Borrower Maryland and a certificate 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 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;
(vi) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers authorized to execute and deliver on behalf of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and to request the issuance Notices of Letters of CreditContinuation;
(vii) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (iA) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity Borrower and (iiB) all corporate, partnership, member corporate or other necessary action taken by such Person the Borrower to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ended September 30, 2011;
(ix) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(x) evidence that all indebtedness, liabilities or obligations owing by the Borrower and its Subsidiaries under the Existing Credit Agreement shall be paid in full, and all commitments thereunder terminated, on the Agreement Date, and that all Liens, if any, securing such indebtedness, liabilities or other obligations will be released immediately upon such payments and termination of the commitments;
(xi) evidence that the Fees, if any, then due and payable under Section 3.6(c)3.5., together with all other fees, expenses and any other Fees 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, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requirehave been paid; and
(xii) Such such other documents, agreements and instruments as the Agent on behalf of Administrative Agent, or any Lender through the Lenders Administrative Agent, may reasonably request.; and
(b) In the good faith judgment of the Agent and the LendersAdministrative 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 which could reasonably be expected to (1A) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect affect, the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The the Borrower 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 default under, conflict with or violation of (1A) any Applicable Law or (2B) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, 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 the Borrower shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated provided all information requested by the Loan DocumentsAdministrative Agent and each Lender in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit 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 hereunder is subject to 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) Term Notes executed by the Borrower, payable to each Lender (if that has requested by such Lender) that it receive a Note and complying with the applicable provisions of Section 2.92.8.;
(iii) An the Guaranty executed by the Parent;
(iv) an opinion of the general counsel to of the BorrowerParent and the other Loan Parties, addressed to the Administrative Agent and the Lenders, addressing the matters set forth in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationExhibit F;
(v) A an opinion of ▇▇▇▇▇▇ & Bird, LLP, counsel to the Administrative Agent, addressed to the Administrative Agent and the Lenders, addressing the enforceability of the Loan Documents and such matters as the Administrative Agent shall reasonably request;
(vi) a certificate of good standing incumbency signed by the secretary or assistant secretary of the Parent with respect to each of the officers of the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which the Parent or the Borrower is a party and to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation), on behalf of the Borrower, Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(vii) a certified copy (certified by the secretary or assistant secretary of the Parent) of all necessary action taken by the Parent to authorize the execution, delivery and performance of the Loan Documents to which either the Parent or the Borrower is a party;
(viii) the declaration of trust of the Parent and the certificate of limited partnership of the Borrower, in each case, certified by the Secretary of State of the State of formation of such Person (a copy of which was provided in accordance with the Existing Credit Agreement), certified by the secretary or assistant secretary (or other individual performing similar functions) of the Parent and the Borrower as being true, correct and unmodified in all respects since the date so certified;
(ix) a Certificate of Good Standing or certificate of similar meaning with respect to the Parent and the Borrower issued as of a recent date by the Secretary of State of the state State of formation of the Borrower each such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower each such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vix) A certificate of incumbency signed copies certified by the Secretary secretary or Assistant Secretary assistant secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute Parent and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a Parent and the limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a partyBorrower;
(viiixi) The the Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Administrative Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxii) A a Compliance Certificate, dated Certificate calculated as of the Effective DateDecember 31, based on financial results as of June 302019, 2021 and after 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;
(xxiii) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such such other documents, agreements and instruments as the Administrative Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Administrative Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any 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 which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), 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;
(iii) The Borrower 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (Corporate Office Properties, 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 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) Notes executed by the Borrower, Borrower payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.10, and the Swingline Note executed by the Borrower payable to the Swingline Lender (which Notes shall be promptly forwarded by the Administrative Agent to the applicable Lender);
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copy, certified The Contribution Agreement executed by the Borrower and each Guarantor existing as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationEffective Date;
(v) A certificate favorable opinion of good standing or certificate of similar meaning with respect counsel to the Borrower issued Obligors, addressed to the Administrative Agent, the Lenders and the Swingline Lender, addressing such matters as Administrative Agent may reasonably require;
(vi) The Governing Documents of the Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vii) A good standing certificate with respect to the Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Borrowing Base Properties owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(viviii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation Continuation, Notices of Conversion and Notices of Conversion Swingline Borrowings and to request the issuance of Letters of Credit;
(viiix) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiix) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Administrative Agent and the Lenders on or prior to the Effective Date;
(ixxi) A pro forma Compliance Certificate, dated Certificate calculated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(xxii) A letter from Borrowing Base Certificate calculated as of the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereofEffective Date showing compliance with Section 2.13;
(xixiii) Such due diligence with respect to Any amendments, modifications or reaffirmations of the Unencumbered Pool as Loan Documents reasonably requested by the Agent may reasonably requireAdministrative Agent; and
(xiixiv) Such other documents, agreements and instruments as the Administrative Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Administrative Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Borrower, the other Obligors, and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Effective Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1A) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(iii) The Borrower Borrower, the other Obligors and its their respective 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 (1A) any Applicable Law or (2B) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its 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 (A1) have a Material Adverse Effect, or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Wells Core Office Income Reit Inc)
Initial Conditions Precedent. The obligation of the Lenders Banks to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, make any Advance is subject to the following conditions precedent:
(a) The condition precedent that the Agent shall have received each on or before the day of the first Advance (and, in any event, not later than June 25, 2003) all of the following, in form and substance satisfactory to the Agenteach Bank:
(ia) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes This Agreement, duly executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and each of the Lenders, in form and substance acceptable to Agent’s counsel;Banks.
(ivb) A copyThe Notes, certified as of a recent dated the date by the appropriate officer of the State in which the Borrower is organizedhereof, and a duly authorized officer or similar representative properly executed on behalf of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;.
(vc) A certificate of good standing the secretary 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 an assistant secretary of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize certifying that the execution, delivery and performance of the Loan Documents and other documents contemplated hereunder have been duly approved by all necessary action of the Board of Directors of the Borrower, and attaching true and correct copies of the applicable resolutions granting such approval, (ii) certifying that attached to which it is a party;such certificate are true and correct copies of the Organizational Documents of the Borrower, together with such copies, and (iii) certifying the names of the officers of the Borrower that are authorized to sign the Loan Documents and other documents contemplated hereunder, together with the true signatures of such officers.
(viiid) The Fees then due and payable under Section 3.6(c)Fee Letter, and any other Fees payable to properly executed on behalf of the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;Borrower.
(ixe) A Compliance Certificatecertificate of good standing of the Borrower from the State of Colorado, dated as not more than twenty days before such date.
(f) Copies of order(s) of the Effective DatePUC approving the execution, based on financial results as delivery and performance by the Borrower of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower party and 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 and thereby.
(g) Signed copies of opinions of counsel for the occurrence Borrower, addressed to the Banks in substantially the forms of any default under, conflict with Exhibit D hereto.
(h) All fees required to be paid as of the date hereof under this Agreement or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower Fee Letter or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan Documentsagreement.
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 following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.10., and the Swingline Note executed by the Borrower;
(iii) The Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) An opinion of S▇▇▇▇▇▇▇ & Worcester LLP, counsel to the BorrowerLoan Parties, and an opinion of V▇▇▇▇▇▇ LLP, special Maryland counsel to the Loan Parties, in each case addressed to the Agent and the Lenders, in form Lenders and substance acceptable to Agent’s counselcovering such matters as are customary for financings of the type contemplated by the Loan Documents and such other matters as the Agent may reasonably request;
(ivv) A copy, The declaration of trust of the Borrower certified as of a recent date by the appropriate officer Department of Assessments and Taxation of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationMaryland;
(vvi) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary Department of Assessments and Taxation of the State of the state of formation of the Borrower Maryland and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have have, in each instance, a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary or Assistant Secretary of the Borrower, of all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(ix) The Governing Documents of each Guarantor certified as of a recent date by the Secretary of State of the State of formation of such Guarantor;
(x) A certificate of good standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by the Secretary of State of the State of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have, in each instance, a Material Adverse Effect;
(xi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the Borrower officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) A copy of (x) all Leases, all Ancillary Agreements, the Advisory Agreement, and each other Material Contract, in each case certified as true, correct and complete by the chief operating officer or chief financial officer of the Borrower, and (y) a Lease Abstract with respect to each Lease for the Unencumbered Senior Housing Assets;
(xiv) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixxv) A Compliance Certificate, dated as of the Effective Date, based Certificate calculated on financial results a pro forma basis as of June 30, 2021 and after 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 Date2005;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiixvi) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), 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;
(iii) The Borrower 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, Borrower payable to each Revolving Loan Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.12(a), Term Notes executed by the Borrower payable to each Term Loan Lender and complying with the applicable provisions of Section 2.12(b), Competitive Advance Notes executed by the Borrower payable to each Lender, and the Swingline Note executed by the Borrower payable to the Agent (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copy, certified The Contribution Agreement executed by the Borrower and each Guarantor existing as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationEffective Date;
(v) A certificate favorable opinion of good standing or certificate of similar meaning with respect counsel to the Borrower issued Obligors, addressed to the Agent, the Lenders and the Swingline Lender, addressing such matters as Agent may require;
(vi) The Governing Documents of Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vii) A good standing certificate with respect to Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Unencumbered Assets owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(viviii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation Swingline Borrowings and Notices of Conversion Competitive Bid Requests and to request the issuance of Letters of Credit;
(viiix) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiix) A copy of (x) the detailed description of the Indebtedness of the Borrower, the other Obligors and their respective Subsidiaries included in the most recently published 10Q, 10K and a Quarterly Supplemental Package (substantially in the form provided to Agent prior to the date hereof), and (y) each Material Contract, in each case certified as true, correct and complete by the chief operating officer or chief financial officer of the Borrower;
(xi) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixxii) A Compliance Certificate, dated Certificate calculated as of the Effective DateDecember 31, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require2005; and
(xiixiii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Borrower, the other Obligors, and its their respective Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(iii) The Borrower Borrower, the other Obligors and its their respective 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
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 following conditions precedent:
(a) The Managing Agent shall have received each of the following, in form and substance satisfactory to the AgentLenders:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the each Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions terms of Section 2.92.8(a);
(iii) An opinion of Suth▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇ren▇▇▇ ▇▇▇, counsel to the Borrower, addressed to the Managing Agent and the Lenders, in substantially the form and substance acceptable to Agent’s counselof Exhibit G;
(iv) A copy, The Articles of Incorporation of each Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the BorrowerMaryland, to be true and complete, of the corporate charter or other formation document of extent not provided to the Borrower as in effect on such date of certificationExisting Lenders;
(v) A certificate of good standing or certificate of similar meaning with respect to the each Borrower issued as of a recent date by the Secretary of State of the state State of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse EffectMaryland;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the each Borrower with respect to each of the officers of the such Borrower authorized to execute and deliver the Loan Documents to which the such Borrower is a party, party and each of the officers of the such Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditConversion;
(vii) Copies (certified by the Secretary or Assistant Secretary (or other individual performing similar functionsof such Borrower) of the Borrower of (i) the by-laws bylaws of such PersonBorrower, if a corporationto the extent not provided to the Existing Lenders, the operating agreement and of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary corporate action taken by such Person Borrower to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable To the extent not provided to the AgentExisting Lenders, the Titled Agents 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 Lenders on or prior to Secretary of State of the Effective DateState of formation of such Subsidiary;
(ix) To the extent not provided to the Existing Lenders, 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 State of formation of each such Subsidiary;
(x) To the extent not provided to the Existing Lenders, copies certified by the Secretary or Assistant Secretary of each of SBIC and SSBIC (or other individual performing similar functions) of the by-laws of each of SBIC and SSBIC;
(xi) A copy of each of the documents, instruments and agreements evidencing any of the Indebtedness described on Schedule 6.1(g) and a copy of each Material Contract, certified as true, correct and complete by the chief financial officer of the Company;
(xii) Evidence that all insurance required to be maintained by the Company and the Subsidiaries under the terms of the Loan Documents is in effect, or a certificate of an officer of the Company to such effect;
(xiii) The Fees then due under Section 3.6;
(xiv) Subordination agreements with respect to any intercompany Indebtedness of a Borrower or a Guarantor permitted by Section 9.2(a)(4);
(xv) A pro-forma Compliance CertificateCertificate and pro-forma Borrowing Base Certificates of each Borrower, dated each calculated as of the Effective Date, based on financial results together with Borrowing Base Certificates of the Company and SBLC, each calculated as of June 30February 28, 2021 1998, and after giving pro forma effect March 31, 1998, and any other information that should have been delivered to the financing contemplated by this Agreement and the use Existing Lenders pursuant to Article 8 of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requireCredit Agreement; and
(xiixvi) Such other documents, agreements and instruments as the Managing Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Managing Agent and the Lenders:
(i) There shall not have occurred or become known to the Managing 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 Company and its Subsidiaries delivered to the Managing Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the a Borrower to fulfill its obligations under the Loan Documents to which it is a partyDocuments;
(iii) The Borrower Company 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower Company or any Subsidiary is a party or by which any of its 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 a Borrower to fulfill its obligations under the Loan Documents to which it is a partyDocuments; 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) The Company shall have provided the Lenders with the executed waivers and consents required by Section 7.15(b) of the Existing Credit Agreement.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders Lender shall not be obligated to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a fund any Loan or make any other extension of credit hereunder unless, on or before the issuance Closing Date, each of a Letter of Credit, is subject to the following conditions precedenthas been satisfied, in the sole opinion of Lender:
(a) The Agent Each Borrower and each other Person that is to be a party to any Loan Document shall have received executed and delivered each of the followingsuch Loan Document, all in form and substance satisfactory to Lender.
(b) Borrowers shall cause to be delivered to Lender the Agentfollowing documents, each in form and substance satisfactory to Lender:
(i) Counterparts of this Agreement executed by each A copy of the parties heretoOrganic Documents of each Borrower and each Subsidiary;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) An incumbency certificate and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer resolutions of the State in which the Borrower is organized, and a duly authorized officer or similar representative board of the Borrower, to be true and complete, of the corporate charter directors (or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing 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 the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicableappropriate governing body) of each state in which 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;
(vi) A certificate of incumbency each other Person executing any Loan Documents, signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws Senior Officer of such Borrower or such other Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize authorizing the execution, delivery and performance of the Loan Documents Documents;
(iii) A favorable legal opinion of each Obligor’s outside legal counsel addressed to which it is a partyLender regarding such matters as Lender and its counsel may request;
(iv) A satisfactory Borrowing Base Certificate duly completed by Borrowers, together with all supporting statements, schedules and reconciliations as required by Lender;
(v) Evidence of insurance, satisfactory to Lender and otherwise meeting the requirements of the Loan Documents;
(vi) Duly executed Lien Waiver/Access Agreements as required by this Agreement or any of the other Loan Documents;
(vii) Borrowers’ financial statements for their most recently concluded Fiscal Year and their most recently concluded fiscal month and such other financial reports and information concerning Borrowers as Lender shall request; and
(viii) The Fees then due All additional opinions, documents, certificates and payable under Section 3.6(c)other assurances that Lender or its counsel may reasonably require.
(c) Lender shall have received, by virtue of UCC searches, PPSA searches and/or other Lien searches, evidence satisfactory to it that there are no existing Liens with respect to any of the Collateral other than Permitted Liens, or such estoppel letters or PPSA acknowledgments as Lender may request, in each case in form and substance satisfactory to Lender, and Lender shall have received evidence that all appropriate UCC financing statements and PPSA filings have been duly made and recorded.
(d) Lender shall have received a final payoff letter from any Person whose outstanding Debt is to be satisfied by remittance of proceeds from the Loans hereunder, and, if applicable, a disbursement letter shall be required to direct the payment of Loan proceeds to such Person.
(e) Lender shall have received, in form and content satisfactory to it, all appraisals of any of the Collateral that may be required by Lender and all field exams with respect to Borrowers or any of the Collateral as may be required by Lender.
(f) Lender shall have received assurances, satisfactory to it, that no litigation is pending or threatened against any Obligor which Lender determines may have a Material Adverse Effect.
(g) Lender shall have determined, based upon its review of a current Borrowing Base Certificate submitted to it, that after giving effect to the initial Loans and any other Fees payable extensions of credit to the Agent, the Titled Agents be made by Lender to Borrowers (including Loans in an amount sufficient to satisfy any Debt that is secured by a Lien and is to be satisfied at closing) and the Lenders on or prior payment of all Fees to the Effective Date;
(ix) A Compliance Certificate, dated Lender as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated required by this Agreement and the use reimbursement of all expenses pursuant to the Loan Documents, Borrowers will have Availability (after deducting therefrom the aggregate amount of all of each Borrower’s accounts payable that are more than 60 days past due, other than trade payables owing to Subsidiaries), plus unrestricted cash and cash equivalents of Borrowers, of not less than the amount shown in Item 14 of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably requestTerms Schedule.
(bh) In the good faith judgment of the Agent and the Lenders:
(i) There Borrowers shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except satisfied such additional conditions precedent as are set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability Item 15 of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan DocumentsTerms Schedule.
Appears in 1 contract
Sources: Loan and Security Agreement (Lakeland Industries Inc)
Initial Conditions Precedent. The obligation of the Lenders shall not be obligated to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a fund any Loan or make any other extension of credit hereunder unless, on or before the issuance date hereof each of a Letter of Credit, is subject to the following conditions precedenthas been satisfied, in the sole opinion of Agents:
(a) The Agent Borrower and each other Person that is to be a party to any Loan Document shall have received executed and delivered each of the followingsuch Loan Document, all in form and substance satisfactory to Agents.
(b) Borrower shall cause to be delivered to the AgentAgents the following documents, each in form and substance reasonably satisfactory to Agents:
(i) Counterparts of this Agreement executed by each A copy of the parties heretoOrganic Documents of Borrower;
(ii) Notes executed by An incumbency certificate and certified resolutions of the board of directors (or other appropriate governing body) of Borrower, payable to each Lender (if requested signed by such Lender) a Senior Officer of Borrower, authorizing the execution, delivery and complying with performance of the applicable provisions of Section 2.9Loan Documents;
(iii) An A favorable legal opinion of each Obligor's outside legal counsel to the Borrower, addressed to the Agent Agents regarding such matters as Agents and the Lenders, in form and substance acceptable to Agent’s counseltheir counsel may request;
(iv) A copy, certified as of a recent date satisfactory Borrowing Base Certificate duly completed by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true together with all supporting statements, schedules and complete, of the corporate charter or other formation document of the Borrower reconciliations as in effect on such date of certificationrequired by Agents;
(v) A certificate Evidence of good standing insurance, reasonably satisfactory to Agents and otherwise meeting the requirements of the Loan Documents;
(vi) Duly executed Lien Waiver/Access Agreements as required by this Agreement or certificate any of similar meaning the other Loan Documents;
(vii) Borrower's financial statements for its most recently concluded Fiscal Year and for the fiscal month ended July 2014 and such other financial reports and information concerning Borrower as Agents shall reasonably request; and
(viii) All additional opinions, documents, certificates and other assurances that Agents or their counsel may reasonably require.
(c) Agents shall have received, by virtue of UCC searches and/or other Lien searches, evidence satisfactory to it that there are no existing Liens with respect to the Borrower issued as of a recent date by the Secretary of State any of the state Collateral other than Permitted Liens.
(d) Agents shall have received a final payoff letter from any Person whose outstanding Debt is to be satisfied by remittance of formation proceeds from the Loans hereunder, and, if applicable, a disbursement letter shall be required to direct the payment of Loan proceeds to such Person.
(e) Agents shall have received, in form and content reasonably satisfactory to them, all appraisals of any of the Collateral that may be reasonably required by Agents and all field exams with respect to Borrower and a certificate or any of qualification the Collateral as may be required by Agents.
(f) Agents shall have received assurances, satisfactory to transact business them, that no litigation is pending or other comparable certificates issued by each Secretary of State (and threatened against any state department of taxation, as applicable) of each state in Obligor which 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;.
(vig) A certificate Agents shall have determined, based upon their review of incumbency signed by a current Borrowing Base Certificate submitted to it, that after giving effect to the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), initial Loans and any other extensions of credit to be made by Lenders to Borrower (including Loans in an amount sufficient to satisfy any Debt that is secured by a Lien and is to be satisfied at closing) and the payment of all Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated required by this Agreement and the use reimbursement of all expenses pursuant to the Loan Documents, Borrower will have Availability (after deducting therefrom the aggregate amount of all of Borrower’s accounts payable that are more than 60 days past due) plus unrestricted cash and cash equivalents of not less than the amount shown in Item 14 of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably requestTerms Schedule.
(bh) In the good faith judgment of the Agent and the Lenders:
(i) There Borrower shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except satisfied such additional conditions precedent as are set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability Item 15 of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan DocumentsTerms Schedule.
Appears in 1 contract
Sources: Loan and Security Agreement (Pacific Ethanol, Inc.)
Initial Conditions Precedent. The In the event that the Lenders holding Unfunded Commitments elect to make a Loan as provided in this Agreement, the obligation of the such 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 following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, Borrower payable to each Lender (if requested by funding a Loan on the date of such Lender) first Credit Event and complying with the applicable provisions of Section 2.92.10 (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copy, certified The Security Documents relating to the Collateral Pool Properties and the Equity Collateral existing as of a recent date by the appropriate officer of Effective Date, together with the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on Eligible Real Estate Qualification Documents for such date of certificationCollateral Pool Properties;
(v) A certificate favorable opinion of good standing counsel to the Obligors, addressed to the Agent, addressing such matters as Agent may reasonably require (provided that such opinion shall not address compliance with zoning or certificate “best available remedies” under applicable state law or the enforceability of similar meaning any provisions of the Guaranty which reference California law (except with respect to the Borrower issued Collateral Properties located in California);
(vi) The Governing Documents of Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vii) A good standing certificate with respect to Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Collateral Pool Properties owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(viviii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditConversion;
(viiix) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiix) A copy of each document or agreement evidencing any of the Indebtedness described in Schedule 6.1(g) as Agent may request, in each case certified as true, correct and complete by the chief operating officer or chief financial officer of the Borrower;
(xi) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixxii) A pro forma Compliance Certificate, dated Certificate calculated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(xxiii) A letter from Evidence of the agents under closing of the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereofSenior Loan;
(xixiv) Such due diligence with respect to An original executed counterpart of the Unencumbered Pool as the Agent may reasonably requireIntercreditor Agreement; and
(xiixv) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Borrower, the other Obligors, their respective Subsidiaries and its Subsidiaries the Collateral Pool Properties delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(iii) The Borrower Borrower, the other Obligors and its their respective 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and;
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents; and
(v) The Formation Transactions and the IPO shall have been consummated, the Parent shall have received gross cash proceeds from the IPO in an amount not less than $4,500,000.00, and the Agent and the Lenders shall be satisfied with the debt, ownership, management and capitalization transactions relating to Borrower and Parent.
Appears in 1 contract
Sources: Mezzanine Credit Agreement (NNN Apartment REIT, Inc.)
Initial Conditions Precedent. The obligation of the Agent and the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions terms of Section 2.92.11.
(a) and the Swingline Note executed by the Borrower;
(iii) An the Guaranty executed by each of the Guarantors initially to be a party thereto;
(iv) favorable UCC, tax, judgment and lien search reports with respect to the Parent, the Borrower and each of the initial Guarantors owning a Borrowing Base Property 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 assets of such Persons other than Permitted Liens or Liens which are to be terminated prior to the Effective Date;
(v) an opinion of Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Parent, the Borrower, the Guarantors, addressed to the Agent and the Lenders, Lenders and in substantially the form and substance acceptable to Agent’s counselof Exhibit D;
(ivvi) A copy, the Certificate of Limited Partnership of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationDelaware;
(vvii) A certificate a Certificate of good standing or certificate of similar meaning Good Standing with respect to the Borrower issued as of a recent date by the Secretary of State of the State of Delaware and certificates of qualification to transact business or other comparable certificates with respect to the Borrower issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified;
(viii) a certificate of incumbency signed by the Secretary or Assistant Secretary of the Parent with respect to each of the officers of the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which the Parent or the Borrower is a party and to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, Notices of Conversion, Notices of Continuation and Disbursement Requests;
(ix) a certified copy (certified by the Secretary or Assistant Secretary of the Parent) of the Trust Agreement, the Partnership Agreement and of all necessary action taken by the Parent to authorize the execution, delivery and performance of the Loan Documents to which either the Parent or the Borrower is a party;
(x) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the State of formation of such Person;
(xi) a Certificate of Good Standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by the Borrower Secretary of State of the State of formation of each such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vixii) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor with respect to each of the officers of the Borrower such Person authorized to execute and deliver the Loan Documents to which the Borrower such Person is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viixiii) Copies copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiv) The Fees then due and payable under Section 3.6(ca Borrowing Base Certificate calculated as of the Effective Date (but using Net Operating Income from financial statements for the fiscal quarter ending September 30, 2000), and any other Fees payable to which Borrowing Base Certificate shall indicate that the AgentBorrower has sufficient borrowing capacity, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as to satisfy in full all of June 30, 2021 and after giving pro forma effect the obligations outstanding under the Existing Credit Agreement immediately prior to the financing contemplated by effectiveness of this Agreement and the use of the proceeds of the Loans to be funded on the Effective DateAgreement;
(xxv) A letter from a Compliance Certificate calculated on a pro forma basis for the agents Parent's fiscal quarter ending September 30, 2000;
(xvi) with respect to each Property identified on Schedule 4.1., each of the items referred to in Section 4.1. required to be delivered in connection with any Borrowing Base Property;
(xvii) the documents and instruments necessary to assign the outstanding obligations and certain of the collateral under the Existing Credit Agreement providing information regarding from the payment in full of amounts outstanding thereunder Existing Banks and providing for the termination thereof;
(xi) Such due diligence with respect Existing Agent to the Unencumbered Pool as the Lenders and Agent may reasonably requirehereunder; and
(xiixviii) Such such other documents, agreements documents and instruments as the Agent on behalf of Agent, or any Lender through the Lenders Agent, may reasonably request.; and
(b) In the good faith judgment of the Agent and the LendersAgent:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its the other Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in have a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1A) result in 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
(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 or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except as set forth in Schedule 6.1(i))for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower Borrower, the Parent or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Pennsylvania Real Estate Investment Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect make the Loans or permit issue the occurrence Letter(s) of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is shall be subject to the satisfaction of the following conditions precedent:
(a) The Agent shall have received from each party hereto a duly executed counterpart of this Agreement signed on behalf of such party.
(b) The Agent shall have received from each Guarantor a counterpart of the followingapplicable Guaranty signed on behalf of such Guarantor.
(c) If requested by any Lender, in form and substance satisfactory the Agent shall have received for such Lender such ▇▇▇▇▇▇’s duly executed Notes of the Borrower dated the date hereof.
(d) The Agent shall have received a customary written opinion addressed to the Agent:Lenders and the Agent and dated as of the Closing Date from counsel to the Borrower and each Guarantor.
(e) The Agent shall have received a certificate of each Loan Party, dated the Closing Date and executed by an Authorized Officer thereof, which shall (A) certify that attached thereto are (i) Counterparts of this Agreement executed by each a true and complete copy of the parties hereto;
certificate or articles of incorporation, formation or organization of such Loan Party certified by the relevant authority of its jurisdiction of organization, which certificate or articles of incorporation, formation or organization have not been amended (except as attached thereto) since the date reflected thereon, (ii) Notes executed by a true and correct copy of the Borrowerby-laws or operating, payable to each Lender (if requested by management, partnership or similar agreement of such Lender) Loan Party, together with all amendments thereto as of the Closing Date, which by-laws or operating, management, partnership or similar agreement are in full force and complying with the applicable provisions of Section 2.9;
effect, (iii) An opinion a true and complete copy of counsel to the Borrowerresolutions or written consent of its authorizing body authorizing the execution and delivery of the Loan Documents, addressed to the Agent which resolutions or consent have not been modified, rescinded or amended (other than as attached thereto) and the Lendersare in full force and effect, in form and substance acceptable to Agent’s counsel;
(iv) A copya good standing (or equivalent) certificate for such Loan Party from the relevant authority of its jurisdiction of organization, certified dated as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;date.
(v) A certificate of good standing 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 the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiif) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Agent shall have received a Compliance Certificate, dated as of the Effective DateClosing Date and signed by a Financial Officer of the REIT, demonstrating compliance with the Financial Covenants and the Unencumbered Pool Covenant on a pro-forma basis based on the most financial results as statements of June 30, 2021 the Consolidated Group and after giving pro forma effect to the financing transactions contemplated hereby.
(g) The Agent shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by ▇▇▇▇▇▇▇▇ hereunder. NAI-5000431466v13
(h) The Agent shall have received a customary certificate, dated as of the Closing Date and signed by an Authorized Officer of the Borrower, certifying as to the matters set forth in clauses (i), (j), (k), (l) and (m) below (as of the Closing Date after giving effect to this Agreement and any borrowings or other extensions of credit hereunder that may be made on the Closing Date).
(i) The Borrower and each Guarantor shall have performed and complied with all terms and conditions herein required to be performed or complied with by it on or prior to the Closing Date, and on the Closing Date there shall exist no Default or Event of Default.
(j) The representations and warranties made by the Borrower and each Guarantor in the Loan Documents or otherwise made by or on behalf of the Borrower, the Guarantors and their respective Subsidiaries in connection therewith shall be true and correct in all material respects on the Closing Date (although any representations and warranties which expressly relate to a given date or period shall be required only to be true and correct in all material respects as of the respective date or for the respective period, as the case may be) (in each case, without duplication of any materiality qualifier contained therein).
(k) All governmental and third party approvals necessary or, in the discretion of the Agent, advisable in connection with the transactions contemplated by this Agreement and the use other Loan Documents and the continuing operations of the proceeds of REIT, the Loans to Borrower and the Subsidiary Guarantors shall have been obtained and be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder force and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably requesteffect.
(bl) In the good faith judgment of the Agent and the Lenders:
(i) There Since December 31, 2024, there shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained material adverse change in the financial and business projectionscondition of the REIT, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in Subsidiary Guarantors, taken as a Material Adverse Effect;whole.
(iim) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1i) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect affect, the ability of the REIT, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;.
(iiin) The Borrower and each Guarantor shall have provided to the Agent and the Lenders the documentation and other information requested by the Agent or any Lender to comply with its Subsidiaries “know your customer” requirements and to confirm compliance with all applicable Sanctions Laws and Regulations, the United States Foreign Corrupt Practices Act and other Applicable Law, and if the Borrower qualifies as a “legal entity customer” within the meaning of the Beneficial Ownership Regulation, the Borrower shall have provided to the Agent (for further delivery by the Agent to the Lenders in accordance with its customary practice) a Beneficial Ownership Certification for the Borrower; in each case delivered at least five (5) Business Days prior to the Closing Date.
(o) The Agent shall have received all approvalssuch other documents, consents agreements and waiversinstruments, and shall have made or given all necessary filings and noticesincluding, without limitation, any real estate diligence in respect of the Unencumbered Pool Assets, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default underAgent, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is boundLender through the Agent, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not may 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 transactions contemplated by the Loan Documentsrequest.
Appears in 1 contract
Sources: Credit Agreement (Blue Owl Real Estate Net Lease Trust)
Initial Conditions Precedent. The effectiveness of this Agreement, and the obligation of Lender to make the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, initial Advance hereunder is subject to the satisfaction or waiver of the following conditions precedent:; provided, however, disbursement of the first Advance shall constitute Lender’s acknowledgement that all of the following conditions have been satisfied or waived.
(a) The Agent Lender shall have received each of the following, in form and substance satisfactory to the AgentLender:
(i) Counterparts counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes the Note executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An a Hazardous Materials Indemnity Agreement executed by Borrower;
(iv) an opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to AgentLender, addressed to Lender and providing an opinion to the effect that: (A) upon due authorization, execution and recordation or filing as may be specified in the opinion, each of the Loan Documents shall be legal, valid and binding instruments, enforceable against the makers thereof in accordance with their respective terms; (B) Borrower is duly formed and has all requisite authority to enter into the Loan Documents; (C) none of the execution and delivery of the Loan Documents on behalf of Borrower, the payment of Borrower’s counselobligations under the Loan Documents, nor the creation of the liens and security interests purported to be created by the Loan Documents (1) violates any provision of Borrower’s organizational documents, (2) violates any law applicable to Borrower, or (3) results in a breach or violation of, or constitutes a default under, any term of any agreement or instrument of Borrower, (D) upon due recordation of the Deeds of Trust and each related UCC-1 Financing Statement, Lender shall have a perfected security interest in each Borrowing Base Property, and (E) such other matters, incident to the transactions contemplated hereby, as Lender may reasonably request;
(ivv) A copythe certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the formation of Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(vvi) A a certificate of good standing (or certificate of similar meaning meaning) with respect to the Borrower issued as of a recent date by the Secretary of State of the state State of formation of the Borrower and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vivii) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) or other comparable document of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditAuthorized Signatories;
(viiviii) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (iA) the Borrower’s by-laws of such Personlaws, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (iiB) all corporate, partnership, member corporate or other necessary action taken by such Person Borrower to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective DateDocuments;
(ix) A a Compliance Certificate, dated Certificate calculated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from a Borrowing Base Report calculated as of the agents under Effective Date, based upon the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereofinitial Borrowing Base Properties;
(xi) Such due diligence with respect to each Project identified on Schedule 4.1(a), all requirements for being an Eligible Property have been satisfied;
(xii) evidence satisfactory to Lender that the Unencumbered Pool as Fees, if any, then due and payable under Section 3.2, together with all other fees, expenses and reimbursement amounts due and payable to Lender, including without limitation, the Agent may reasonably requirefees and expenses of counsel to Lender, have been paid or will be paid with the first Advance;
(xiii) evidence satisfactory to Lender that Borrower has obtained Property Insurance for each Project in accordance with Section 7.6(b); and
(xiixiv) Such such other documents, agreements documents and instruments as the Agent on behalf of the Lenders Lender may reasonably request.
(b) In the good faith judgment of the Agent and the LendersLender:
(i) There shall not have occurred or become known to the Agent or any of the Lenders Lender any event, condition, situation or status since 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 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 litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1A) result in a Material Adverse Effect or (B) restrain or enjoin, impose burdensome conditions on, or otherwise affect the ability of Borrower to fulfill its obligations under the Loan Documents; and
(iii) Borrower shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which Borrower is a party or by which Borrower or its properties is bound, except as set forth in Schedule 6.1(i))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 to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Revolving Credit Agreement (TRI Pointe 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 following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, Borrower payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.12, and the Swingline Note executed by the Borrower payable to the Agent (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyfavorable opinion of counsel to the Obligors, certified addressed to the Agent, the Lenders and the Swingline Lender, addressing such matters as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationAgent may reasonably require;
(v) A certificate The Governing Documents of good standing the Borrower, each Guarantor and each general partner, managing member (or certificate Person performing similar functions) of similar meaning with respect to the Borrower issued such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vi) A good standing certificate with respect to the Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Unencumbered Assets owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation Continuation, Notices of Conversion and Notices of Conversion Swingline Borrowings and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiiix) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full pro forma Compliance Certificate calculated as of amounts outstanding thereunder and providing for the termination thereofDecember 31, 2009;
(xi) Such due diligence with respect A certificate signed by a Responsible Officer of the Borrower certifying that each Property to be treated as an Unencumbered Asset on the Effective Date satisfies all of the requirements for an Unencumbered Asset set forth in the definition thereof;
(xii) A pay-off letter setting forth the amount necessary to repay and cancel in full the existing credit facility under that certain Amended and Restated Credit Agreement, dated as of May 7, 2009, among the Borrower, the Lenders signatory thereto and Wachovia Bank, National Association (the “Original Credit Agreement”), in form and substance reasonably satisfactory to the Unencumbered Pool as Agent, which amount set forth in such pay-off letter shall be paid on (or simultaneously with) the Agent may reasonably requireEffective Date; and
(xiixiii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Borrower, the other Obligors, and its their respective Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(iii) The Borrower Borrower, the other Obligors and its their respective 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Wells Real Estate Investment Trust Ii Inc)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Lenders to effect or permit the occurrence fund their respective portions of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is are subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, Borrower payable to each Lender (if other than any Lender that has requested by such Lendernot to receive a Note) and complying with the applicable provisions of Section 2.92.10 (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An The Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) A favorable opinion of counsel to the BorrowerObligors, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified addressing such matters as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationAgent may reasonably require;
(v) A certificate The Governing Documents of good standing the Borrower, each Guarantor and each general partner or certificate managing member (or Person performing similar functions) of similar meaning with respect to the Borrower issued such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vi) A good standing certificate with respect to the Borrower, each Guarantor and each general partner or managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditConversion;
(viiviii) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiiix) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees and invoiced expenses payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixx) A pro forma Compliance Certificate, dated Certificate calculated as of the Effective Date, based on financial results as of June September 30, 2021 and 2017, after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereofLoans;
(xi) Such due diligence with respect A certificate signed by a Responsible Officer of the Borrower certifying that each Property to be treated as an Unencumbered Asset on the Effective Date satisfies all of the requirements for an Unencumbered Pool as Asset set forth in the Agent may reasonably requiredefinition thereof;
(xii) The documentation and other information requested by any Lender that is required by regulatory authorities under the applicable “know your customer” rules and regulations; and
(xiixiii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsSeptember 30, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date 2017 that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;; and
(iii) The Borrower Borrower, the other Obligors and its their respective 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (Columbia Property Trust, Inc.)
Initial Conditions Precedent. The obligation 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 satisfaction of the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions terms of Section 2.9Sections 2.9.(a) and (b);
(iii) An opinion of Bake▇ & ▇ost▇▇▇▇▇ ▇▇▇, counsel to the Borrower, addressed to the Agent and the Lenders, in substantially the form and substance acceptable to Agent’s counselof Exhibit H;
(iv) A copyAn opinion of Kenn▇▇▇ ▇▇▇i▇▇▇▇▇ ▇▇▇d▇▇▇ & ▇ick▇▇▇, ▇.L.P., counsel to the Borrower, addressed to the Agent and the Lenders, regarding the enforceability of the Agreement and the other Loan Documents under the laws of the State of North Carolina, and such other matters of North Carolina law as the Agent may reasonably request;
(v) The Certificate of Incorporation of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationDelaware;
(vvi) A certificate of long form good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state State of formation of the Borrower Delaware and a certificate either (x) certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where or (y) other evidence satisfactory to the failure Agent as to be so qualified could reasonably be expected the Borrower's qualification to have a Material Adverse Effecttransact business in each such state;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditConversion;
(viiviii) Copies (certified by the Secretary or Assistant Secretary (or other individual performing similar functionsof the Borrower) of the bylaws of the Borrower and of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary corporate action taken by such Person the Borrower to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) The Fees then due A copy of (x) each of the documents, instruments and payable under Section 3.6(cagreements evidencing any of the Indebtedness described on Schedule 7.1.(g); (y) each Material Contract and (z) each of the documents, instruments and agreements evidencing any other Fees payable to of the Agenttransactions described on Schedule 10.12., in each case certified as true, correct and complete by the Titled Agents and chief executive officer or chief financial officer of the Lenders on or prior to the Effective DateBorrower;
(ixx) Evidence that all insurance required to be maintained by the Borrower and the Subsidiaries under the terms of the Loan Documents is in effect;
(xi) The Fees, if any, then due under Section 3.6.;
(xii) All accrued but unpaid interest owing under the Existing Credit Agreement;
(xiii) All accrued but unpaid fees owing under the Existing Credit Agreement;
(xiv) A Compliance Certificate, dated Certificate calculated on a pro forma basis as of the Effective Date, Agreement Date based on financial results as of June information for the fiscal quarter ending September 30, 2021 and after 1998, adjusted pro forma to November 6, 1998, giving pro forma effect to the financing contemplated by this Agreement and the use consummation of the proceeds of the Loans to be funded on the Effective Datetransactions contemplated hereby;
(xxv) A letter from a Collateral Pool Certificate calculated as of September 30, 1998, adjusted pro forma to November 6, 1998, giving pro forma effect to the agents under consummation of the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereoftransactions contemplated hereby;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiixvi) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its 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 to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each applicable Lender (including any Designated Lender, if applicable) (other than any Lender that has requested by such Lenderthat it not receive a Revolving Note or Bid Rate Note) and complying with the applicable provisions terms of Section 2.92.11.(a), and the Swingline Note executed by the Borrower;
(iii) An opinion the Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyan opinion of King & Spalding LLP, certified as of a recent date by the appropriate officer of the State in which counsel to the Borrower is organizedand the other Loan Parties, addressed to the Administrative Agent, the Lenders, the Swingline Lender and a duly authorized officer or similar representative of the Borrower, to be true Issuing Bank and complete, of covering the corporate charter or other formation document of the Borrower as matters set forth in effect on such date of certificationExhibit O;
(v) A certificate of good standing 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 the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower GP Sub with respect to each of the officers of the Borrower GP Sub authorized to execute and deliver on behalf of the Borrower the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower GP Sub then authorized to deliver deliver, on behalf of the Borrower, Notices of Borrowing, Notices of Swingline Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vi) copies, certified by the Secretary or Assistant Secretary of GP Sub, of (i) the partnership agreement of the Borrower and (ii) all corporate (or comparable) action taken by GP Sub to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(vii) Copies the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party;
(viii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party;
(ix) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower (unless otherwise delivered pursuant to clause (v) above), authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(x) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party of (iA) the by-laws of such PersonLoan Party, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (iiB) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixi) The Fees evidence that the Fees, if any, then due and payable under Section 3.6(c)3.5., together with all other fees, expenses and any other Fees reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been paid;
(xii) a Compliance Certificate calculated on a pro forma basis for the Titled Agents and Borrower’s fiscal quarter ended September 30, 2010;
(xiii) a Transfer Authorizer Designation Form effective as of the Lenders on or prior to the Effective Agreement Date;
(ixxiv) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such such other documents, agreements and instruments as the Agent on behalf of Administrative Agent, or any Lender through the Lenders Administrative Agent, may reasonably request.; and
(b) In the good faith judgment of the Agent and the LendersAdministrative Agent:
(i) There there shall not have occurred since December 31, 2009, any circumstance or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date condition that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1A) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2B) 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 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 (1A) any Applicable Law or (2B) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its 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, enjoin impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There the Borrower and each other Loan Party shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated provided all information requested by the Loan DocumentsAdministrative Agent and each Lender in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit 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 pursuant to Section 2.1. is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if other than any Lender that has requested by such Lenderthat it not receive a Note) and complying with the applicable provisions of Section 2.92.8.;
(iii) The Guaranty executed by the Parent and any Material Subsidiary existing as of the Effective Date;
(iv) An opinion of the general counsel of the Parent and the other Loan Parties, addressed to the Agent and the Lenders addressing the matters set forth in Exhibit F;
(v) An opinion of ▇▇▇▇▇▇ & Bird, LLP, counsel to the BorrowerAgent, addressed to the Agent and the Lenders, in form addressing the enforceability of the Loan Documents and substance acceptable to Agent’s counselsuch matters as the Agent shall reasonably request;
(ivvi) A copya certificate of incumbency signed by the Secretary or Assistant Secretary of the Parent with respect to each of the officers of the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which the Parent or the Borrower is a party and to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower the Notice of Borrowing, Notices of Conversion, and Notices of Continuation;
(vii) a certified copy (certified by the Secretary or Assistant Secretary of the Parent) of all necessary action taken by the Parent to authorize the execution, delivery and performance of the Loan Documents to which either the Parent or the Borrower is a party;
(viii) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Parent, the Borrower and each Guarantor, certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, formation of the corporate charter or other formation document of the Borrower as in effect on such date of certificationPerson;
(vix) A certificate a Certificate of good standing Good Standing or certificate of similar meaning with respect to the Parent, the Borrower and each Guarantor (and in the case of a limited partnership, the general partner of such Guarantor) issued as of a recent date by the Secretary of State of the state State of formation of the Borrower each such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vix) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor with respect to each of the officers of the Borrower such Person authorized to execute and deliver the Loan Documents to which the Borrower such Person is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viixi) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Parent, the Borrower and each Guarantor of (i) the by-laws of such Person, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and entity;
(iixii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor of all corporate, partnership, member or other necessary action taken by such Person each Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) The the Fees then due and payable under Section 3.6(c), 3.6. and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxiv) A a Compliance Certificate, dated as of the Effective Date, based on financial results Certificate calculated as of June 30, 2021 and after 2011, giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(xxv) A letter a statement from the agents agent under each of the Existing Agreement Credit Agreements providing information regarding the payment in full of all amounts outstanding thereunder and providing for under each of the termination thereofExisting Credit Agreements as of the Effective Date;
(xixvi) Such due diligence with respect the Notice of Borrowing from the Borrower for the Loans indicating how the proceeds thereof are to be made available to the Unencumbered Pool as Borrower, and if any of the Agent may reasonably requireLoans initially are to be LIBOR Loans, the Interest Period thereof; and
(xiixvii) Such such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), 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;
(iii) The Borrower 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (Corporate Office 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 following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each Lender (or Designated Lender, if requested by such Lenderapplicable) and complying with the applicable provisions of Section 2.92.11., and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyAn opinion of legal counsel to the Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, substantially in the form of Exhibit M;
(v) The articles of incorporation of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative state of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationits incorporation;
(vvi) A certificate of good standing 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 the Borrower its incorporation and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which 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;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary or Assistant Secretary of the Borrower, of (i) the bylaws of the Borrower and (ii) all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(ix) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the state of formation of such Guarantor;
(x) A certificate of good standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by the Secretary of State of the state of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(xi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the Borrower officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxiv) A Compliance Certificate, dated Certificate calculated as of the Effective Date[March 31, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require2005]; and
(xiixv) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.;
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), 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;
(iii) The Borrower 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (United Dominion Realty Trust Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to the order of each Lender (or Designated Lender, if requested by such Lenderapplicable) and complying with the applicable provisions of Section 2.92.11., and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyAn opinion of King & Spalding LLP, counsel to the Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, substantially in the form of Exhibit M;
(v) The certificate of partnership of the Borrower certified as of a recent date by the appropriate officer Secretary of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationGeorgia;
(vvi) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of Georgia;
(vii) A certificate of incumbency signed by the Secretary or Assistant Secretary of GP Sub with respect to each of the officers of GP Sub authorized to execute and deliver on behalf of the Borrower the Loan Documents to which the Borrower is a party and the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viii) Copies, certified by the Secretary or Assistant Secretary of GP Sub, of (i) the partnership agreement of the Borrower and (ii) all corporate (or comparable) action taken by GP Sub to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(ix) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the state of formation of the Borrower and a such Guarantor;
(x) A certificate of qualification good standing or certificate of similar meaning with respect to transact business or other comparable certificates each Guarantor issued as of a recent date by each the Secretary of State (and any of the state department of taxation, as applicable) formation of each state in which 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 Effectsuch Guarantor;
(vixi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor with respect to each of the officers of the Borrower such Guarantor authorized to execute and deliver the Loan Documents to which the Borrower such Guarantor is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viixii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of the Borrower of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxiv) A Compliance Certificate, dated Certificate calculated as of the Effective Date, based on financial results as of June September 30, 2021 and after 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 Date2003;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiixv) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred (i) subsequent to September 30, 2003, any material adverse change in the business, properties, financial condition or become known to the Agent or any operations of the Lenders Borrower and its Subsidiaries taken as a whole, or (ii) any eventchanges in the business, properties, financial condition, situation or status since the date operations of the information contained in Borrower and its Subsidiaries that would cause the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered included in the Information Memorandum dated October 16, 2003, distributed to the Agent Lenders to be materially inaccurate, taken as a whole, as of the Closing Date (it being understood that actual results may vary from such projections, forecasts, and the Lenders prior similar forward-looking information, and do not and are not intended to the Agreement Date provide any guarantee or assurance that has had or could reasonably actual results will be expected to result in a Material Adverse Effectconsistent therewith);
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), 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
(iii) The Borrower 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of make 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 counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) the Lenders and complying with the applicable provisions terms of Section 2.92.9(a);
(iii) An opinion of counsel to the Borrower, addressed to the Agent Partial Payment and the Lenders, in form and substance acceptable to Agent’s counselLimited Guaranty executed by Guarantors;
(iv) A copythe Hazardous Material Indemnity executed by the Borrower and Guarantors;
(A) an opinion of ▇▇▇▇▇ Lovells US LLP, counsel to the Borrower and the other Loan Parties, and (B) an opinion of local counsel reasonably satisfactory to Administrative Agent, as special counsel to the Loan Parties, each addressed to the Administrative Agent and the Lenders;
(vi) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative state of the Borrower, to be true and complete, formation of the corporate charter or other formation document of the Borrower as in effect on such date of certificationPerson;
(vvii) A a certificate of good standing (or certificate of similar meaning meaning) with respect to the Borrower each Loan Party issued as of a recent date by the Secretary of State of the state of formation of the Borrower each such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party with respect to each of the officers of the Borrower such Person authorized to execute and deliver the Loan Documents to which the Borrower such Person is a party, and each in the case of the officers Borrower, authorized to execute and deliver on behalf of the Borrower authorized to deliver Notices of Borrowing, Notices of Conversion, Notices of Continuation and Notices of Conversion and to request requests for disbursement from the issuance of Letters of CreditFF&E Reserve Account;
(viiix) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party of (iA) the by-laws of such Person, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (iiB) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) The Fees a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xi) UCC, tax, judgment and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions indicating that there are no Liens of record with respect to the assets of each such Loan Party other than Permitted Liens;
(xii) evidence that the Fees, if any, then due and payable under Section 3.6(c)3.5, together with all other fees, expenses and any other Fees 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, the Titled Agents and the Lenders on or prior to the Effective Datehave been paid;
(ixxiii) A Compliance Certificateinsurance certificates, dated as or other evidence, providing that the insurance coverage required under Section 8.5 (including, without limitation, both property and liability insurance) is in full force and effect and stating that the coverage shall not be cancelable or materially changed without ten (10) days prior written notice to the Administrative Agent of any cancellation for nonpayment or premiums, and not less than thirty (30) days prior written notice to the Administrative Agent of any other cancellation or any modification (including a reduction in coverage), together with appropriate evidence that the Administrative Agent, for its benefit and the benefit of the Effective DateLenders is named as a lender’s loss payee and additional insured, based as appropriate, on financial results as of June 30, 2021 and after giving pro forma effect to all insurance policies that the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence Borrower or any Loan Party actually maintains with respect to the Unencumbered Pool as the Agent may reasonably requireProperty and improvements thereon; and
(xiixiv) Such a Security Deed;
(xv) a Management Agreement Assignment/Subordination with respect to the Management Agreement and a “comfort letter” from the Franchisor;
(xvi) copies of all Material Contracts (to the extent not theretofore delivered) and, if requested by the Administrative Agent, collateral assignments executed by Borrower or the Operating Lessee (as applicable) in favor of the Administrative Agent for its benefit and the benefit of the Lenders, of the Material Contracts relating to the use, occupancy, operation, maintenance, enjoyment or ownership of the Property;
(xvii) an ALTA 2006 Form Loan Policy of Title Insurance in the amount of the Loan in favor of the Administrative Agent for its benefit and the benefit of the Lenders, with respect to the Property, including endorsements with respect to such items of coverage as the Administrative Agent may request and which endorsements are available and customary in the jurisdiction where the Property is located, issued by a title insurance company acceptable to the Administrative Agent, showing the fee simple title to the Property and improvements described in the Security Deed as vested in Borrower, and insuring that the Lien granted by such Security Deed is a valid Lien against the Property, subject only to the Permitted Liens and such other restrictions, encumbrances, easements and reservations as are acceptable to the Administrative Agent (the “Title Policy”);
(xviii) documents required to establish, or evidencing the establishment of, the FF&E Reserve Account; and
(xix) such other instruments, documents, agreements agreements, financing statements, certificates, opinions and instruments other Security Documents as the Administrative Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the LendersAdministrative 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 Guarantors or 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;; and
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 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 No Lender has any obligation of the Lenders to effect make its first Revolving Loan Advance or permit the occurrence of Swing Line Advance and Issuing Bank has no obligation to issue the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject Credit (whether or not otherwise agreed to the following conditions precedentby Issuing Bank) unless:
(a) The Administrative Agent shall have received each all of the followingfollowing with copies for each Lender, at Administrative Agent's office in form Dallas, Texas:
(1) This Agreement, the Notes (to the Lenders that have requested Notes), the Guaranties and Pledge Agreements listed on Schedule 4 hereto, and any other documents required in connection herewith, each duly executed and delivered and in form, substance and date satisfactory to the Administrative Agent.
(2) The following certificates:
(i) Counterparts an "Omnibus Certificate" of the Secretary or an Assistant Secretary and of a Designated Officer, which shall contain the names and signatures of the officers of Borrower authorized to execute Loan Documents and which shall certify to the truth, correctness and completeness of the following exhibits attached thereto: (A) a copy of resolutions duly adopted by the Board of Directors of Borrower and in full force and effect on the Effective Date, authorizing the execution of this Agreement executed by each and the other Loan Documents delivered or to be delivered in connection herewith and the consummation of the parties hereto;transactions contemplated herein and therein, (B) a copy of the charter documents of Borrower and all amendments thereto, certified by the appropriate official of Borrower's jurisdiction of organization, and (C) a copy of the bylaws or similar governing documents of Borrower; and
(ii) Notes executed by the a "Compliance Certificate" of a Designated Officer of Borrower, payable of even date with such Revolving Loan Advance or Swing Line Advance or issuance of such Letter of Credit, in which such officer certifies to each Lender (if requested by such Lenderthe satisfaction of the conditions set out in Section 3.2(a) and complying with the applicable provisions of Section 2.9;(b) and that all conditions hereunder have been satisfied.
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv3) A copycertificate (or certificates) of the due formation, certified as valid existence and good standing of a recent date Borrower in its jurisdiction of organization, issued by the appropriate officer authorities of such jurisdiction.
(4) The favorable opinions of the State counsel for each Designated Entity, given upon their express instructions substantially in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower form set forth as in effect on such date of certification;Exhibit G attached hereto.
(v5) Documents similar to those specified in Section 3.1(a)(2)(i) and 3.1(a)(3) with respect to each Restricted Subsidiary which is or will be party to a Guaranty or Pledge Agreement on the date hereof.
(6) A certificate of good standing or a Designated Officer of Borrower disclosing the insurance coverages on material assets of the Designated Entities.
(7) A certificate of similar meaning with respect a Designated Officer of Borrower as to the Borrower issued aggregate book value of the assets of the Unrestricted Subsidiaries as of a recent date the Effective Date, which aggregate book value shall not exceed $10,000,000.
(b) Except as disclosed to the Lenders in the Disclosure Schedule or otherwise in writing prior to the execution hereof and not objected to by the Secretary Required Lenders, there shall be no pending or threatened litigation, action or proceeding against Borrower or any of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxationits Subsidiaries which, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified if adversely determined, could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(bc) In the good faith judgment of the Agent and the Lenders:
(i) There No event or condition shall not have occurred or become known to the Agent or any of the Lenders any eventsince December 31, 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 Agent and the Lenders prior to the Agreement Date that has had or 1999 which could reasonably be expected to result in a Material Adverse Effect;.
(iid) No litigationAfter giving effect to such Revolving Loan Advances, actionSwing Line Advances and Letters of Credit, suit, investigation or other arbitral, administrative or judicial proceeding Borrower and Lenders shall be pending or threatened which could reasonably be expected to in compliance with the Margin Regulations.
(1e) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations All commitments under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries Existing Credit Agreement 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan Documentsbeen terminated.
Appears in 1 contract
Initial Conditions Precedent. The obligations of Agent and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and the obligation of the Lenders ▇▇▇▇▇▇ 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 Credit, is are subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes the Term Note payable to Lender executed by the Borrower▇▇▇▇▇▇▇▇, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.5;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselGuaranty Agreement executed by ▇▇▇▇▇▇▇▇▇;
(iv) A copythe certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of Borrower, certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer of formation of such Person (or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationcomparable governmental body);
(v) A a certified copy (certified by the Secretary of Borrower) of (A) the limited liability company agreement of Borrower and (B) all necessary action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents;
(vi) certificates of incumbency, if applicable, from ▇▇▇▇▇▇▇▇ signed by the Secretary of ▇▇▇▇▇▇▇▇, with respect to each of the officers of ▇▇▇▇▇▇▇▇ (A) authorized to execute and deliver on behalf of Borrower the Loan Documents and (B) authorized to execute and deliver on behalf of Borrower Notices of Borrowing;
(vii) a certificate of good standing 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 organization of the Borrower and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) A certificate all fees and expenses of incumbency signed by the Secretary or Assistant Secretary Agent (or other individual performing similar functionsincluding reasonable attorney’s fees and expenses of counsel to Agent) of the Borrower incurred in connection with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which Documents, including without limitations the Borrower is a partypreparation, negotiation, execution and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;Documents; and
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably requestrequest to the extent required under the EB-5 program.
(b) In the good faith judgment of the Agent and the LendersAgent:
(i) There there shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in have a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened against Borrower which could reasonably be expected to (1A) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect enjoin the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;Documents; and
(iii) The Borrower 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 default under, conflict with or violation of (1A) any Applicable Law or (2B) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of it or its properties is are 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 transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Loan Agreement (Car Tech, LLC)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each Lender (or Designated Lender, if requested by such Lenderapplicable) and complying with the applicable provisions of Section 2.92.11., and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyAn opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, substantially in the form of Exhibit M;
(v) The articles of incorporation of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative state of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationits incorporation;
(vvi) A certificate of good standing 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 the Borrower its incorporation and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which 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;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary or Assistant Secretary of the Borrower, of (i) the bylaws of the Borrower and (ii) all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(ix) Except as specifically contemplated in Section 5.3.(b) hereof, the articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the state of formation of such Guarantor;
(x) Except as specifically contemplated in Section 5.3.(b) hereof, a certificate of good standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by the Secretary of State of the state of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(xi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the Borrower officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xii) Except as specifically contemplated in Section 5.3.(b) hereof, copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxiv) A Compliance Certificate, dated Certificate calculated as of the Effective Date, based on financial results as of June September 30, 2021 and after 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 Date2002;
(xxv) A letter from the respective agents under the Existing Agreement providing information regarding Credit Agreements to the payment in full of effect that such agreements have terminated and all amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requirehave been paid; and
(xiixvi) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), 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;
(iii) The Borrower 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (United Dominion Realty Trust Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Credit Issuer to issue the initial Letter of Credit pursuant to the terms and conditions of this Agreement is subject to the following conditions precedent:
(a) The Agent condition precedent that the Letter of Credit Issuer shall have received each on or before the day of issuance of the initial Letter of Credit the following, each dated on or before such day, in form and substance reasonably satisfactory to the Agent:Letter of Credit Issuer (the first day when all such conditions have been satisfied or waived is hereinafter referred to as the “Effective Date”):
(a) Duly executed signature pages to this Agreement, any Collateral Provider Guaranty, any Subsidiary Guaranty and any Account Control Agreement (including by facsimile or other electronic means) in a sufficient number of signed counterparts as requested by the Letter of Credit Issuer.
(b) A certificate of the Secretary, Assistant Secretary, or any other officer, director, or manager of each Credit Party and Collateral Provider certifying (i) Counterparts of this Agreement executed by each the resolutions of the parties hereto;
board of directors or managers of such Credit Party or Collateral Provider authorizing the execution of each Credit Document to which such Credit Party or Collateral Provider is a party, (ii) Notes executed by the Borrowercharter and bylaws or other applicable organizational documents of such Credit Party or Collateral Provider, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An certificates of existence, good standing and qualification, or an equivalent thereto, from appropriate government officials with respect to such Credit Party or Collateral Provider, provided that such government officials of the applicable jurisdiction issue such certificates or an equivalent thereto, (iv) all other documents evidencing any necessary company action and governmental, shareholder and third-party consents, approvals and filings, if any, with respect to each such Credit Document and the transactions thereunder, and (v) the names and true signatures of the officers (or agents) of such Credit Party or Collateral Provider authorized to sign each Credit Document to be executed by it.
(c) A certificate of a Responsible Officer of Cameron certifying (i) that the representations and warranties contained in each Credit Document are true and correct in all material respects as of the Effective Date (other than those representations and warranties that are subject to a materiality qualifier, which shall be true and correct in all respects), (ii) as to the satisfaction of all conditions set forth in this Section 3.01, (iii) no Event of Default or Default exists on the Effective Date or would result therefrom, (iv) the absence of any Material Adverse Effect since the date of Cameron’s last audited financial statements, and (v) the annual Consolidated audited financial statements of Cameron and its Subsidiaries for the fiscal year ended December 31, 2010 and the quarterly Consolidated unaudited Consolidated financial statements of Cameron and its Subsidiaries for the fiscal quarters ended March 31, 2011, June 30, 2011, and September 30, 2011, in each case delivered to the Letter of Credit Issuer prior to the Effective Date, are true and correct copies of such financial statements, fairly present the Consolidated financial condition of Cameron as of such dates, and were, to the best of such officer’s knowledge, prepared in conformity with GAAP.
(d) Certificates of existence, good standing and qualification from appropriate state officials with respect to each Credit Party and Collateral Provider and foreign equivalents for each Non-U.S. Credit Party and each Collateral Provider that is not incorporated under the laws of the United States of America or a state thereof (each, a “Non-U.S. Collateral Provider”).
(e) A legal opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel to the BorrowerCredit Parties, addressed including without limitation certain specific no-conflicts opinions to the Agent JPMorgan Credit Agreement and the LendersCameron’s other debt documents, in form and substance reasonably satisfactory to the Letter of Credit Issuer.
(f) A legal opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., in-house counsel to the Credit Parties, in form and substance reasonably satisfactory to the Letter of Credit Issuer.
(g) A legal opinion of external New York counsel to the Credit Parties in form and substance reasonably acceptable to Agent’s counsel;the Letter of Credit Issuer.
(ivh) A copy, certified Evidence of appointment by each Non-U.S. Credit Party of CT Corporation System as its domestic process agent in accordance with Section 8.17.
(i) The audited Consolidated financial statements of Cameron and its Subsidiaries dated as of a recent date December 31, 2010 and unaudited Consolidated financial statements of Cameron and its Subsidiaries dated as of March 31, 2011, June 30, 2011, and September 30, 2011.
(j) All documents required for the establishment of the Reimbursement Account, executed by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;Applicants.
(vk) A certificate of good standing There shall exist no pending 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 the Borrower and a certificate of qualification to transact business threatened litigation, request, directive, injunction, stay, order, or other comparable certificates issued by each Secretary of State (and any state department of taxationproceeding since December 31, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified 2010 that could reasonably be expected to have a Material Adverse Effect;.
(vil) A certificate All documentation and other information that the Credit Parties are required by bank regulatory authorities to deliver to the Letter of incumbency signed Credit Issuer under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the Patriot Act, that has been identified by the Secretary or Assistant Secretary Letter of Credit Issuer and notified to the Credit Parties.
(or other individual performing similar functionsm) Evidence of payment by the Credit Parties of all accrued fees, expenses and disbursements required to be paid by the Credit Parties on the date hereof, including the fees and expenses of counsel to the Letter of Credit Issuer.
(n) Completion of Cameron’s installation of the Borrower with respect to each Bolero System and therespective trade modules or completion of the officers Cameron’s installation of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;CitiDirect.
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiio) Such other documents, governmental certificates, conditions, agreements and instruments lien searches as the Agent on behalf Letter of the Lenders Credit Issuer may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Continuing Agreement for Letters of Credit (Cameron International Corp)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Lenders to effect or permit the occurrence fund their respective portions of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is are subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, Borrower payable to each Lender (if other than any Lender that has requested by such Lendernot to receive a Note) and complying with the applicable provisions of Section 2.92.10 (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An The Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) A favorable opinion of counsel to the BorrowerObligors, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified addressing such matters as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationAgent may reasonably require;
(v) A certificate The Governing Documents of good standing the Borrower, each Guarantor and each general partner or certificate managing member (or Person performing similar functions) of similar meaning with respect to the Borrower issued such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vi) A good standing certificate with respect to the Borrower, each Guarantor and each general partner or managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditConversion;
(viiviii) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiiix) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees and invoiced expenses payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixx) A pro forma Compliance Certificate, dated Certificate calculated as of the Effective DateMarch 31, based on financial results as of June 302015, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereofLoans;
(xi) Such due diligence with respect A certificate signed by a Responsible Officer of the Borrower certifying that each Property to be treated as an Unencumbered Asset on the Effective Date satisfies all of the requirements for an Unencumbered Pool as Asset set forth in the Agent may reasonably requiredefinition thereof;
(xii) The documentation and other information requested by any Lender that is required by regulatory authorities under the applicable “know your customer” rules and regulations; and
(xiixiii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the 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, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date 2015 that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;; and
(iii) The Borrower Borrower, the other Obligors and its their respective 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (Columbia Property Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each Lender (if other than any Lender that has requested by such Lenderthat it not receive a Note) and complying with the applicable provisions of Section 2.92.11. and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by the Parent and any Material Subsidiary existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyAn opinion of the general counsel of the Parent and the other Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, addressing the matters set forth in Exhibit H;
(v) An opinion of ▇▇▇▇▇▇ & Bird, LLP, counsel to the Agent, addressed to the Agent, the Lenders and the Swingline Lender, addressing the enforceability of the Loan Documents and such matters as the Agent shall reasonably request;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary of the Parent with respect to each of the officers of the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which the Parent or the Borrower is a party and to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing and requests for Letters of Credit;
(vii) a certified copy (certified by the Secretary or Assistant Secretary of the Parent) of all necessary action taken by the Parent to authorize the execution, delivery and performance of the Loan Documents to which either the Parent or the Borrower is a party;
(viii) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Parent, the Borrower and each Guarantor, certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, formation of the corporate charter or other formation document of the Borrower as in effect on such date of certificationPerson;
(vix) A certificate a Certificate of good standing Good Standing or certificate of similar meaning with respect to the Parent, the Borrower and each Guarantor (and in the case of a limited partnership, the general partner of such Guarantor) issued as of a recent date by the Secretary of State of the state State of formation of the Borrower each such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vix) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor with respect to each of the officers of the Borrower such Person authorized to execute and deliver the Loan Documents to which the Borrower such Person is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viixi) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Parent, the Borrower and each Guarantor of (i) the by-laws of such Person, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and entity;
(iixii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor of all corporate, partnership, member or other necessary action taken by such Person each Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) The the Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxiv) A a Compliance Certificate, dated as of the Effective Date, based on financial results Certificate calculated as of June 30, 2021 and after 2011, giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(xxv) A letter a statement from the agents agent under each of the Existing Agreement Credit Agreements providing information regarding the payment in full of all amounts outstanding thereunder and providing for under each of the termination thereofExisting Credit Agreements as of the Effective Date;
(xixvi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requirea Notice of Borrowing; and
(xiixvii) Such such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), 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;
(iii) The Borrower 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Corporate Office Properties 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 CreditLoan, is subject to 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) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions terms of Section 2.92.10.(a);
(iiiA) An opinion of Shulman, Rogers, Gandal, Pordy & ▇▇▇▇▇, P.A., counsel to the Borrower, addressed to the Administrative Agent and the Lenders, in substantially the form of Exhibit M-1 and substance acceptable (B) an opinion of ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, local Pennsylvania counsel to Agent’s counselthe Borrower, addressed to the Administrative Agent and the Lenders, in substantially the form of Exhibit M-2;
(iv) A copy, the declaration of trust of the Borrower certified as of a recent date by the appropriate officer Department of Consumer and Regulatory Affairs of the State in which the Borrower is organized, and a duly authorized officer or similar representative District of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationColumbia;
(v) A certificate of a good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary Department of State Consumer and Regulatory Affairs of the state District of formation of the Borrower Columbia and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditConversion;
(vii) Copies certified copies (certified by the Secretary or Assistant Secretary (or other individual performing similar functionsof the Borrower) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person the Borrower's Board of Trustees to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and A Guaranty executed by each Material Subsidiary other than any other Fees payable to Non-Guarantor Subsidiary in substantially the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
form of Exhibit C; (ix) A Compliance CertificateThe articles of incorporation, dated articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Material Subsidiary (other than any Non- Guarantor Subsidiary) certified as of a recent date by the Effective Date, based on financial results Secretary of State of the state of formation of such Material Subsidiary (provided that the Lenders agree to fund the Loan without all such organizational documents as of June 30, 2021 and after giving pro forma effect long as the missing organizational documents are provided to the financing contemplated by this Agreement and Administrative Agent within 30 days following the use of the proceeds of the Loans to be funded on the Effective Closing Date;
); (x) A letter from the agents under the Existing Agreement providing information regarding the payment in full certificate of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence good standing or certificate of similar meaning with respect to each Material Subsidiary (other than any Non- Guarantor Subsidiary) issued as of a recent date by the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf Secretary of State of the Lenders may reasonably request.
(b) In the good faith judgment state of the Agent formation of each such Material Subsidiary and the Lenders:
(i) There shall not have occurred or become known certificates of qualification to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and transact business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to comparable certificates issued by each Secretary of State (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability any state department of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and noticestaxation, as shall be applicable) of each state in which such Material Subsidiary is required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan Documents.so qualified;
Appears in 1 contract
Sources: Term Loan Agreement (Federal Realty 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 following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.11., the Swingline Note executed by the Borrower and the Alternate Currency Note executed by the Borrower;
(iii) The Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) An opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, counsel to the BorrowerLoan Parties, and opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel to the Loan Parties, in each case addressed to the Agent and the Lenders, in form Lenders and substance acceptable to Agent’s counselcovering such matters as are customary for financings of the type contemplated by the Loan Documents and such other matters as the Agent may reasonably request;
(ivv) A copy, The declaration of trust of the Borrower certified as of a recent date by the appropriate officer Department of Assessments and Taxation of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationMaryland;
(vvi) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary Department of Assessments and Taxation of the State of the state of formation of the Borrower Maryland and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which 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;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing, Notices of Alternate Currency Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary or Assistant Secretary of the Borrower, of all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(ix) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the State of formation of such Guarantor;
(x) A certificate of good standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by the Secretary of State of the State of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(xi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the Borrower officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxiv) A Compliance Certificate, dated Certificate calculated as of the Effective Date, based on financial results as of June September 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require2004; and
(xiixv) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), 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;
(iii) The Borrower 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each Lender (or Designated Lender, if requested by such Lenderapplicable) and complying with the applicable provisions of Section 2.92.11., and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copy, The certificate or articles of incorporation of the Borrower certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer Secretary or similar representative Assistant Secretary of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing 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 the Borrower its incorporation and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which 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;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies, certified by the Secretary or Assistant Secretary of the Borrower, of (i) the bylaws of the Borrower and (ii) all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(viii) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Guarantor;
(ix) A certificate of good standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by the Secretary of State of the state of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(x) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xi) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixii) 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 M;
(xiii) A copy of each of the documents, instruments and agreements evidencing any of the Debt described on Schedule 6.1.(g), in each case certified as true, correct and complete by the chief executive officer or chief financial officer of the Borrower;
(xiv) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxv) A Compliance Certificate, dated Certificate calculated as of the Effective DateDecember 31, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require2002; and
(xiixvi) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), 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;
(iii) The Borrower 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the initial making of a Loan Loans or the issuance of a Letter of Credit, Credit hereunder is subject to the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the AgentAdministrative Agent and the Lenders:
(i) Counterparts Original counterparts of (1) this Agreement, (2) the Guaranty, (3) the Pledge and Security Agreement; (4) with respect to each Initial Borrowing Base Property, the (A) Mortgage, which shall include an Assignment of Licenses, Permits and Contracts and an Assignment of Leases and Rents, (B) the Environmental Indemnity, (C) to the extent required by the Administrative Agent, Property Management Agreements for each Borrowing Base Property (which may be PDF counterparts), and (D) to the extent required by the Administrative Agent, an Assignment of Property Management Agreement for each Property Management Agreement (which may be PDF counterparts); and (5) the Deposit Account Pledge Agreement, in each case executed and delivered by each of the parties heretohereto and thereto, as applicable;
(ii) Original Revolving Notes executed by the Borrower, payable to each Lender that has requested a Revolving Note at least one (if requested by such 1) Business Day prior to closing and an original Swingline Note in favor of the Swingline Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel A lender’s title insurance policy, issued by a title insurance company reasonably acceptable to the BorrowerAdministrative Agent, addressed insuring the Lien of the Mortgage as a first priority lien on each of the Initial Borrowing Base Properties, and otherwise showing no exceptions to title unacceptable to Administrative Agent, or with the consent of the Administrative Agent, an executed commitment to issue an owner’s title insurance policy in pro forma form reasonably acceptable to the Administrative Agent (it being acknowledged that the Mortgages may be recorded promptly following the Effective Date so long as the title company has issued the title policies (or arrangements satisfactory to the Administrative Agent shall have been made therefor)), and all taxes, fees and other charges then due and payable in connection with the Lenders, recording of the Mortgages shall have been paid in full;
(iv) A current survey of each Initial Borrowing Base Property or other survey documentation acceptable to the Administrative Agent;
(v) An Appraisal of each Initial Borrowing Base Property in form and substance acceptable to Agent’s counselthe Administrative Agent and completed within sixty (60) days prior to the Effective Date, or such earlier date as the Administrative Agent shall accept;
(ivvi) A copycurrent Phase I Environmental Report, reasonably acceptable to the Administrative Agent for each Initial Borrowing Base Property;
(vii) Proper UCC-1 financing statements and fixture filings 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; and arrangements satisfactory to the Administrative Agent shall have been made for the recording or filing of the Collateral Documents (and/or proper notices or UCC-1 financing statements or fixture filings in respect thereof) in order to perfect the Liens of the Administrative Agent in the Collateral as determined by the Administrative Agent;
(viii) To the extent requested by the Administrative Agent, a perfection certificate with respect to the Borrower and the Initial Borrowing Base Properties;
(ix) Opinions of counsel (including local counsel as required by the Administrative Agent) to the Loan Parties addressed to the Administrative Agent, the L/C Issuer and the Lenders and their respective successors and permitted assigns;
(x) The articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the appropriate officer Secretary of State (or comparable official) of the State in which the Borrower is organized, and a duly authorized officer or similar representative state of the Borrower, to be true and complete, formation of the corporate charter or other formation document of the Borrower as in effect on such date of certificationLoan Party;
(vxi) A certificate of good standing or certificate of similar meaning with respect to the Borrower each Loan Party issued as of a recent date by the Secretary of State (or comparable official) of the state of formation of the Borrower each such Loan Party and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (or comparable official and any state department of taxation, as applicable) of each state in which the Borrower 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 Effectqualified;
(vixii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party (or the Borrower Secretary or Assistant Secretary of such Loan Party’s sole member, sole manager or general partner) with respect to each of the officers of the Borrower such Loan Party authorized to execute and deliver the Loan Documents to which the Borrower such Loan Party is a party, and each in the case of the Borrower, the officers of the Borrower (or of the Parent Guarantor acting in its capacity as the sole general partner of the Borrower) then authorized to deliver Notices of Borrowing, Notices of Continuation and Continuation, Notices of Conversion and to request the issuance notices of Letters of Creditprepayment;
(viixiii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party (or the Borrower Secretary or Assistant Secretary of such Loan Party’s sole member, sole manager or general partner) of (ix) the partnership agreement, by-laws of such Personlaws, if a corporation, the operating agreement of such Person, if a or limited liability companycompany operating agreement, the partnership agreement of such Personas applicable, if a limited or general partnership, or and/or other comparable document in the case of any other form of legal entity and (iiy) all partnership, corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiv) The Payment of the Fees then due and payable under Section 3.6(c), and any other Fees the Fee Letter payable to the Administrative Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date, and of the costs and expenses of the Administrative Agent and the Titled Agent (including, without limitation, the reasonable fees, charges and disbursements of outside counsel to the Administrative Agent) to the extent invoiced or reflected on the Administrative Agent’s Flow of Funds statement at least one (1) Business Day prior to the Effective Date;
(ixxv) The results of (A) a recent UCC lien search in the jurisdiction of organization of each Loan Party (or direct or indirect parent thereof), which search results shall reveal no Liens on any of the assets or the direct or indirect Equity Interests of the Loan Parties (through the Parent Guarantor) except for Liens permitted by Section 10.6 or Liens as to which satisfactory arrangements have been made for the discharge on or promptly after the Effective Date pursuant to a payoff letter or other documentation reasonably satisfactory to the Administrative Agent, and (B) recent tax (state and federal), judgment, litigation and bankruptcy searches against each Loan Party in all relevant jurisdictions;
(xvi) A Compliance Certificate, dated Certificate calculated as of the Effective Date, based on financial results as of June 30, 2021 and after Date (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);
(xxvii) A letter from Borrowing Base Certificate calculated as of the agents under Effective Date, for the Existing Agreement providing information regarding Initial Borrowing Base Properties;
(xviii) A certificate signed by a Responsible Officer of the Borrower, certifying that the conditions set forth in Section 6.1(b) have been satisfied (assuming for this purpose that the Administrative Agent and the Lenders are satisfied with or have approved the items or matters requiring their satisfaction or approval therein);
(xix) To the extent requested by the Administrative Agent, a Due Diligence Package, to the extent of any items not specifically listed in this Section 6.1(a) and not otherwise provided hereunder, for each of the Initial Borrowing Base Properties, and satisfactory review and approval of the same by each of the Administrative Agent and Lenders in their sole discretion;
(xx) The financial statements described in Section 7.11;
(xxi) Payoff letters for any Indebtedness listed on Schedule 6.1(a), and payment in full of amounts outstanding thereunder such Indebtedness with the proceeds of the Loans in accordance with the Notice of Borrowing and providing for the termination thereofa tri-party letter with a satisfactory title company relating thereto;
(xixxii) Such due diligence Evidence that no portion of any Initial Borrowing Base Property is located in an area designated by the Secretary of Housing and Urban Development as a special flood hazard area, or flood hazard insurance acceptable to Administrative Agent in its sole discretion;
(xxiii) A solvency certificate in the form attached hereto as Exhibit L;
(xxiv) All documentation and other information required by the Administrative Agent or any Lender in connection with the requirements of bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including USA PATRIOT Act, and a properly completed and signed IRS Form W-8 or W-9, as applicable, for each Loan Party (and each holder, directly or indirectly, of 25% or more of the Equity Interests of any Loan Party), and the Certification of Beneficial Ownership for each Loan Party;
(xxv) Certificates of insurance and endorsements and other evidence reasonably satisfactory to the Administrative Agent of compliance with the insurance requirements set forth in Section 8.5;
(xxvi) an amendment to, or amendment and restatement of, the loan documents evidencing the HCM Mezzanine Debt (as in effect immediately prior to the Effective Date) in form and substance satisfactory to the Administrative Agent in its sole discretion, together with collateral releases with respect to all security interests, guaranty terminations and related documentation required by the Unencumbered Pool Administrative Agent;
(xxvii) Evidence of the absence of any action, suit, investigation or proceeding, pending or threatened, in any court or before any arbitrator or Governmental Authority that purports to affect the Loan Parties in a materially adverse manner or any transaction contemplated under this Agreement, or that could reasonably be expected to have a Material Adverse Effect on the Loan Parties or any transaction contemplated hereby or on the ability of the Loan Parties to perform their obligations under the Loan Documents (and the Loan Parties shall certify that, as of the Effective Date, they do not reasonably expect that the proceedings described on Schedule 7.9 will have a Material Adverse Effect on any Loan Party or on any Loan Party’s ability to perform its obligations under the Loan Documents);
(xxviii) An organizational chart, capitalization table, prospectus, and any other documents detailing the corporate model and asset composition of the Loan Parties and their Subsidiaries, and satisfactory review and approval of the same by each of the Administrative Agent may reasonably requireand Lenders in their sole discretion;
(xxix) Formal credit approval by each Lender party hereto on the Effective Date; and
(xiixxx) Such other documents, agreements and instruments as the Administrative Agent on behalf of the Lenders may reasonably requestdeem necessary. In connection with the recordation of the Mortgage and other Collateral Documents, the Loan Parties shall be responsible on a joint and several basis for any required mortgage recording, intangibles or transfer taxes; any title insurance premiums; and any recording charges or other amounts payable in connection with the recording of the Mortgages and Collateral Documents.
(b) In the good faith judgment of the The Administrative Agent and the LendersLenders shall be satisfied that:
(i) There shall not have occurred or become known Both immediately before and immediately after giving effect to the 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 Loans to be funded on the Effective Date, (A) no Default or Event of Default exists, (B) the representations and warranties made or deemed made by each Loan Party in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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 partyparty are true and correct in all respects on and as of the Effective Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties are true and correct in all respects on and as of such earlier date);
(ii) There shall not have occurred any material adverse change since December 31, 2018 in the business, assets, operations or condition (financial or otherwise) of any Loan Party and there shall be no materially adverse information that has become known that is inconsistent with the results of the due diligence review of the Administrative Agent or the Lenders or other information provided by or at the direction of the Loan Parties;
(iii) The Borrower After giving effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded or Letter of Credit to be issued 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 the HCM Mezzanine Debt Documents (after giving effect to the amendment and/or amendment and restatement thereof entered into on the Effective Date) or under any of the Loan Parties’ other material financial obligations in existence on the Effective Date; and
(iv) Each of the Loan Parties and 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 (1) any Applicable Law applicable to the Loan Parties or its assets including, without limitation, the Borrowing Base Properties, or (2) any material agreement, document or instrument to which the Borrower or any Subsidiary Loan Party is a party or by which any of Loan Party or 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 transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (HC Government Realty Trust, Inc.)
Initial Conditions Precedent. The obligation Borrower acknowledges that the Lender shall not make any Advances unless each 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 following conditions precedent:
(a) The Agent shall have received each of the followingare satisfied, all in form and substance satisfactory to the AgentLender:
(a) The Borrower shall have delivered to the Lender:
(i) Counterparts Resolutions of the Board of Directors of the Borrower approving and authorizing (i) the execution, delivery and performance of this Agreement executed by Agreement, the Note, the Escrow Agreements and each of the parties heretoother documents required to be delivered hereunder, and (ii) the consummation of the transactions contemplated herein, certified by the Secretary or an Assistant Secretary of the Borrower;
(ii) Notes executed by Signature and incumbency certificates of the Borrowerofficer or officers of the Borrower authorized to execute this Agreement, payable the Note and the Escrow Agreements, and to each Lender (if requested by such Lender) and complying deal with the applicable provisions of Section 2.9Lender in connection therewith;
(iii) An opinion A duly executed and delivered counterpart of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselthis Agreement;
(iv) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, duly executed and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationdelivered Note;
(v) A Copies of (A) the certificate of good standing or certificate incorporation of similar meaning with respect to the Borrower issued as of a recent date Borrower, certified by the Secretary of State or similar public official of the state Borrower's jurisdiction of formation incorporation as of a recent date, and (B) the bylaws of the Borrower and a certificate of qualification to transact business Borrower, certified by the Secretary or other comparable certificates issued by each an Assistant Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse EffectBorrower;
(vi) A certificate of incumbency signed by good standing from the Secretary of State or Assistant Secretary (or other individual performing similar functions) public official, dated as of the Borrower with respect to a recent date, of each of the officers of the Borrower authorized to execute and deliver the Loan Documents to jurisdiction in which the Borrower is a party, and each of the officers of the Borrower authorized incorporated or qualified or licensed to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;transact business; and
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) A favorable opinion of counsel to the Borrower of and the Guarantor (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable who shall be satisfactory to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixLender) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool covering such matters as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders Lender may reasonably request.
(b) In The Borrower shall have performed in all material respects all agreements and satisfied all conditions which this Agreement provides shall be performed on or before the good faith judgment initial Advance.
(c) All actions required to create, perfect and preserve the security interest and lien of the Agent Lender in all Collateral then in existence or otherwise reasonably requested by, the Lender shall have been duly authorized and taken and all filings and recordings (including, without limitation, the execution and filing of such UCC financing statements as the Lender shall reasonably request) with governmental authorities or regulatory bodies and all actions with respect to such governmental authorities or regulatory bodies and all other Persons shall have been made or taken and completed, and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower and its Subsidiaries Lender shall have received all approvalssatisfactory evidence thereof.
(d) The Borrower, consents the Lender and waivers, and each Person who will act as an Escrow Agent shall have made or given all necessary filings executed and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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; anddelivered an Escrow Agreement.
(ive) There The Guarantors shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected executed and delivered the Guaranty to materially and adversely affect the transactions contemplated by the Loan DocumentsLender.
Appears in 1 contract
Sources: Mortgage and Co Op Loan Warehouse and Security Agreement (Community Home Mortgage 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 following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.10.;
(iii) An the Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) the Pledge Agreement executed by each Pledgor existing as of the Effective Date;
(v) all existing 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 Pledgor thereof, together with an Acknowledgment and Consent, substantially in the form of Schedule 2 to the Pledge Agreement, duly executed by any issuer of any Equity Interest pledged pursuant to the Pledge Agreement that is not itself a party to the Pledge Agreement;
(vi) the Security Agreement executed by the Parent, the Borrower and/or any Domestic Subsidiary (other than an Excluded Subsidiary) having rights in any Mortgage Receivable, any other Investment (other than an Equity Interest subject to the Pledge Agreement) and any deposit account or securities account in which reserves for furniture, fixtures and equipment are deposited, subjecting all such property to the Lien of the Security Agreement, except to the extent prohibited pursuant to the terms of any existing document, instrument or agreement to which the Borrower or any such Domestic Subsidiary a party;
(vii) except as otherwise provided in Section 5.3. each document (including, without limitation, any UCC financing statement and any control agreement) required by the Pledge Agreement, Security Agreement or under Applicable Law or reasonably deemed necessary or appropriate by the Agent to be entered into, filed, registered or recorded in order to create in favor of the Agent, for the benefit of the Lenders, a perfected first-priority Lien in the Collateral granted under the Pledge Agreement and the Security Agreement, shall have been entered into, filed, registered or recorded or shall have been delivered to the Agent and be in proper form for filing, registration or recordation, as appropriate;
(viii) 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, and such search shall reveal no Liens of record with respect to any of the Collateral other than Permitted Liens of the type described in clause (a) of the definition of Permitted Liens or Liens to be terminated prior to the Effective Date;
(ix) an opinion of counsel to the BorrowerLoan Parties, addressed to the Agent and the Lenders, in such form and substance acceptable to Agent’s counselas the Agent may reasonably request;
(ivx) A copythe articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative state of the Borrower, to be true and complete, formation of the corporate charter or other formation document of the Borrower as in effect on such date of certificationLoan Party;
(vxi) A a certificate of good standing or certificate of similar meaning with respect to the Borrower each Loan Party issued as of a recent date by the Secretary of State of the state of formation of the Borrower each such Loan Party and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower 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;
(vixii) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party with respect to each of the officers of the Borrower such Loan Party authorized to execute and deliver the Loan Documents to which the Borrower such Loan Party is a party, and each in the case of the Borrower, and the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viixiii) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party of (iA) the by-laws of such PersonLoan Party, if a corporation, the operating agreement of such PersonLoan Party, if a limited liability company, the partnership agreement of such PersonLoan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (iiB) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiv) The [Intentionally Omitted];
(xv) [Intentionally Omitted];
(xvi) a certificate of the chief executive officer, chief financial officer or other senior officer of the Borrower certifying that all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects (excluding any representation or warranty regarding the nonexistence of any Default or Event of Default);
(xvii) the Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxviii) A a Compliance Certificate, dated as of the Effective Date, based on financial results Certificate calculated as of June 30, 2021 and after 2011 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xxix) A a letter from the agents Administrative Agent under the Existing Credit Agreement providing information regarding the payment in full of amounts outstanding thereunder under the Existing Credit Agreement and providing for the termination thereofthereof and the release of all Liens securing any obligations owing thereunder and the delivery to the Agent of any collateral held pursuant thereto;
(xixx) Such due diligence with respect the Notice of Borrowing for the Revolving Loans to be made available to the Unencumbered Pool Borrower as the Agent may reasonably requirecontemplated by Section 2.1.(c);
(xxi) [Intentionally Omitted]; and
(xiixxii) Such such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower credit facilities being provided pursuant to fulfill its obligations under the Loan Documents to which it is a party;Documents; and
(iiiii) The Borrower and its Subsidiaries and Joint Venture 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 by the Loan Documents without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of any Issuing Bank to issue 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 initial Letter of Credit, Credit and the obligation of each Lender to make its initial Advance pursuant to the terms and conditions of this Agreement is subject to the following conditions precedent:
(a) The condition precedent that the Administrative Agent shall have received each on or before the day of the initial Advance (or, if earlier, the day of issuance of the initial Letter of Credit) the following, each dated on or before such day, in form and substance reasonably satisfactory to the Agent:Administrative Agent (the first day when all such conditions have been satisfied or waived is hereinafter referred to as the “Effective Date”):
(ia) Counterparts of Duly executed signature pages to this Agreement executed (including by each facsimile or other electronic means) in a sufficient number of the parties hereto;
(ii) Notes executed signed counterparts as requested by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Administrative Agent and the Lenders, in form and substance acceptable any Notes requested pursuant to Agent’s counsel;
(ivSection 2.02(e) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing 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 the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment A certificate of the Agent Secretary or an Assistant Secretary of the Borrower certifying (i) the resolutions of the board of directors of the Borrower authorizing the execution of each Credit Document, (ii) the charter and bylaws of the Borrower and (iii) all other documents evidencing any necessary company action and governmental, shareholder and third-party consents, approvals and filings, if any, with respect to each such Credit Document and the Lenders:transactions thereunder.
(c) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers (or agents) authorized to sign each Credit Document to be executed by it.
(d) An opinion of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Borrower, and if applicable, Guarantors, substantially in the form of Exhibit D.
(e) An opinion of the general counsel of the Borrower, and if applicable, Guarantors, substantially in the form of Exhibit E.
(f) Certificates of existence, good standing and qualification from appropriate state officials with respect to the Borrower.
(g) A certificate of an officer of the Borrower (i) certifying that the representations and warranties contained in each Credit Document are correct, (ii) certifying as to the satisfaction of all conditions set forth in this Section 3.01, (iii) describing in reasonable detail the insurance maintained by the Borrower and the Subsidiaries on the date hereof as required by Section 5.01(c) and (iv) certifying that such insurance complies with Section 5.01(c) and is in full force and effect.
(h) Evidence of payment by the Borrower of all fees and disbursements required to be paid by the Borrower on the date hereof.
(i) There shall not have occurred Evidence of the termination of the Existing Credit Facility and the commitments thereunder, payment in full of all amounts owed thereunder and termination of all Liens arising thereunder or become known in connection therewith (which termination and repayment may be contemporaneous with the satisfaction of the conditions under this Section 3.01 and the application of the proceeds of any Advances and the issuance of any Letters of Credit that occur on the Effective Date).
(j) All documentation and other information that the Borrower is required by bank regulatory authorities to deliver to the Issuing Banks, the Lenders and the Administrative Agent or any under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the Patriot Act, that has been identified by the Issuing Banks, the Lenders any event, condition, situation or status since and the date of the information contained in the financial Administrative Agent and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered notified to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan DocumentsBorrower.
Appears in 1 contract
Sources: Revolving Credit Agreement (Pride International 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 following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to the order of each Lender (or Designated Lender, if requested by such Lenderapplicable) and complying with the applicable provisions of Section 2.92.11., and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyAn opinion of King & Spalding LLP, counsel to the Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, substantially in the form of Exhibit M;
(v) The certificate of partnership of the Borrower certified as of a recent date by the appropriate officer Secretary of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationGeorgia;
(vvi) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of Georgia;
(vii) A certificate of incumbency signed by the Secretary or Assistant Secretary of GP Sub with respect to each of the officers of GP Sub authorized to execute and deliver on behalf of the Borrower the Loan Documents to which the Borrower is a party and the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viii) Copies, certified by the Secretary or Assistant Secretary of GP Sub, of (i) the partnership agreement of the Borrower and (ii) all corporate (or comparable) action taken by GP Sub to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(ix) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the state of formation of the Borrower and a such Guarantor;
(x) A certificate of qualification good standing or certificate of similar meaning with respect to transact business or other comparable certificates each Guarantor issued as of a recent date by each the Secretary of State (and any of the state department of taxation, as applicable) formation of each state in which 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 Effectsuch Guarantor;
(vixi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor with respect to each of the officers of the Borrower such Guarantor authorized to execute and deliver the Loan Documents to which the Borrower such Guarantor is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viixii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of the Borrower of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxiv) A Compliance Certificate, dated Certificate calculated as of the Effective DateDecember 31, based on financial results as of June 30, 2021 and after 2005 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date) and a Compliance Certificate calculated as of March 31, 2006 (which may be in draft form and indicate that the financial information provided with such certificate is subject to change) (giving pro forma effect to the financing contemplated by this Agreement and the use of proceeds of the Loans to be funded on the Effective Date);
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiixv) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred (i) subsequent to December 31, 2005, any material adverse change in the business, properties, financial condition or become known to the Agent or any operations of the Lenders Borrower and its Subsidiaries taken as a whole, or (ii) any eventchanges in the business, properties, financial condition, situation or status since the date operations of the information contained in Borrower and its Subsidiaries that would cause the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered included in the Confidential Information Memorandum dated March 2006, distributed to the Agent Lenders to be materially inaccurate, taken as a whole, as of the Closing Date (it being understood that actual results may vary from such projections, forecasts, and the Lenders prior similar forward-looking information, and do not and are not intended to the Agreement Date provide any guarantee or assurance that has had or could reasonably actual results will be expected to result in a Material Adverse Effectconsistent therewith);
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), 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
(iii) The Borrower 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. 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 Lender's obligations under this Agreement are subject to the following conditions precedent:
(a) The Agent shall have condition precedent that it has confirmed to the Borrower that it has received each all of the following, following in form and substance satisfactory to the AgentLender:
(a) a certified copy of the Constitutive Documents of each Obligor;
(b) a certified copy of the Evidence of Incorporation of each Obligor;
(c) a certified copy of a resolution of the board of each Obligor:
(i) Counterparts of this Agreement executed by each of approving the parties hereto;
(ii) Notes executed by the Borrowerterms of, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing 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 the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the transactions contemplated by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, relevant Finance Documents and Project Documents and resolving that it executes the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan relevant Finance Documents to which it is a party;
(viiiii) The Fees then due and payable under Section 3.6(c)nominating, and any other Fees payable to in the Agentcase of the Borrower, the Titled Agents and Borrower Senior Officer [and, in the Lenders on or prior to the Effective Datecase of an other Obligor, its Obligor Senior Officer];
(ixiii) A Compliance Certificateauthorising its Borrower Senior Officer or the Obligor Senior Officer, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent case may reasonably require; and
(xii) Such other documentsbe, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the 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 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 specified person or judicial proceeding shall be pending or threatened which could reasonably be expected persons to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially execute each relevant Finance Document and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents Project Document to which it is a partyparty on its behalf;
(iiiiv) The authorising its seal to be affixed to those relevant Finance Documents and Project Documents to be executed by it under seal;
(v) authorising its Borrower and Senior Office or its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and noticesObligor Senior Officer, as shall the case may be, or other specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be required to consummate the transactions contemplated hereby without the occurrence of any default signed and/or despatched by it under, conflict with or violation of (1) any Applicable Law or (2) any agreementin connection with, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 relevant Finance Documents to which it is a party; and
(ivvi) There shall not have occurred in the case of any Obligor granting a guarantee to the lender, specifying the commercial benefit to that Obligor in granting such guarantee and confirming the sufficiency of such commercial benefit;
(d) [a certified resolution of the shareholders of any Obligor granting a guarantee to the Lender approving the entering into of such guarantee;]
(e) the Lender being satisfied that the Borrower has (and continues to have) sufficient funding (whether from its own resources or exist otherwise) to complete the Project by the [Project Target Date];
(f) a copy of the Project and Works Details and the Project Delivery Plan;
(g) the Project is compliant with all NEIF requirements;
(h) the Loan is State Aid compliant;
(i) confirmation of Jobs Targets;
(j) counterparts of each Finance Document (other than this Agreement) executed by the Borrower;
(k) certified copies of any deeds of release relating to all outstanding security interests granted by the Borrower other than a Permitted Encumbrance;
(i) [a Certificate of Title in a form acceptable to the Lender in respect of the ownership of the Site and the Borrower'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 Lender) issued to the Lender by a firm of solicitors acceptable to the Lender certifying among other things that: (a) the Site is free from any conditions, restrictions, covenants or third party interests which do or might affect the right to carry out and maintain the Works; and (b) the Borrower has sufficient rights appurtenant to its estate or interest in the Site to enable the Project 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 material disruption party;]
(ii) [a letter of financial or capital markets that could reasonably be expected undertaking relating to materially the title and adversely affect other deeds to the transactions contemplated Site and the registration of the Lender Security [and the Intercreditor Deed] duly signed by the Loan DocumentsSolicitors in favour of the Lender;]
(m) copies of policies, certificates or cover notes relating to each contract or policy of insurance taken out by or on behalf of the Borrower or by a Contractor in respect of the Works sufficient in the opinion of the Lender to confirm compliance with clause 10.3;
(n) evidence that all Consents and all other Authorisations the Agency considers necessary have been obtained to ensure that each Milestone is met by the relevant Milestone Date;
(o) the grant of planning permission including approval of siting, design, access and use, landscaping and materials for the whole of the Project;
(p) the Project Specific Conditions (if any);
(q) copies of the Senior Finance Documents demonstrating that the arrangements thereunder accord with the Initial Cashflow;
(r) the full application case paper relevant to the Project duly accepted and signed by the chair of the investment panel of NELEP, the chair of the NELEP and the executive director of the NELEP; and
(s) such duty of care deeds in favour of the Lender as the Lender may request.
Appears in 1 contract
Sources: Funding 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 It is a Loan or the issuance of a Letter of Credit, is subject condition precedent to the following conditions precedent:
(a) The Agent effectiveness of this Agreement that Buyer shall have received the following documents, each of the following, which shall be in form and substance satisfactory to Buyer, except to the Agentextent waived by Buyer in its sole discretion:
(ia) Counterparts of this Agreement executed by each of the Program Documents shall be duly executed and delivered by all of the parties heretothereto and shall each be dated as of the date;
(iib) Notes executed by the Borrower, payable to each Lender one or more certificates of Seller’s secretary (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative officer) attesting to certain factual matters, certifying the text of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing Seller’s articles or certificate of similar meaning with respect to incorporation and bylaws or other governing charter documents, certifying the Borrower issued as of a recent date by the Secretary of State text of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functionsresolution(s) of the Borrower with respect to each board of the officers directors or managers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person 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 (Buyer being entitled to rely thereon until a new certificate has been furnished to Buyer upon which it is a partyBuyer shall thereafter be entitled to rely);
(viiic) The Fees then due financial statements of Seller and, if applicable, its Subsidiaries, on a consolidated basis) containing a balance sheet as of the most recent fiscal year-end of Seller (the “Statement Date”) and payable under Section 3.6(c)related statements of income, changes in shareholders’ equity and cash flows for the period ended on the Statement Date, and any other Fees payable a balance sheet as of the Interim Date and related statement of income for the period ended on the Interim Date, all prepared in accordance with GAAP applied on a basis consistent with prior periods and, in the case of the statements as of the Statement Date, audited by independent certified public accountants of recognized standing acceptable to the Agent, the Titled Agents and the Lenders on or prior to the Effective DateBuyer;
(ixd) A Compliance Certificatesuch other financial statements, dated public record search reports, legal opinions and other documents and statements as of Buyer may require under the Effective Date, based on financial results as of June 30, 2021 and after 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 Datecircumstances;
(xe) A letter from opinions of counsel to Seller have been waived as a condition to the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereofexecution hereof;
(xif) Such due diligence with respect UCC lien searches against Seller and tax lien searches and judgment searches against Seller, each in the appropriate jurisdictions, the results of which shall be satisfactory to the Unencumbered Pool as the Agent may reasonably requireBuyer in its sole and exclusive discretion; and
(xiig) Such other documentsBuyer’s completion, agreements and instruments as the Agent on behalf to its sole satisfaction, of the Lenders may reasonably request.
(b) In the good faith judgment on-site due diligence of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Seller and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan Documentsoperations.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders any Lender to effect or permit the occurrence of the make its first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions terms of Section 2.92.8.(a);
(iii) An opinion of Bake▇ & ▇ost▇▇▇▇▇ ▇▇▇, counsel to the Borrower, addressed to the Agent and the Lenders, in substantially the form and substance acceptable to Agent’s counselof Exhibit H;
(iv) A copy, The Certificate of Incorporation of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationDelaware;
(v) A certificate of long form good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state State of formation of the Borrower Delaware and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which 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 Effectqualified;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditConversion;
(vii) Copies (certified by the Secretary or Assistant Secretary (or other individual performing similar functionsof the Borrower) of the bylaws of the Borrower and of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary corporate action taken by such Person the Borrower to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due A copy of (x) each of the documents, instruments and payable under Section 3.6(cagreements evidencing any of the Indebtedness described on Schedule 7.1.(g); (y) each Material Contract and (z) each of the documents, instruments and agreements evidencing any other Fees payable to of the Agenttransactions described on Schedule 10.12., in each case certified as true, correct and complete by the Titled Agents and chief executive officer or chief financial officer of the Lenders on or prior to the Effective DateBorrower;
(ix) Evidence that all insurance required to be maintained by the Borrower and the Subsidiaries under the terms of the Loan Documents is in effect;
(x) The Fees, if any, then due under Section 3.6.;
(xi) A Compliance Certificate, dated Certificate calculated on a pro forma basis as of the Effective Date, Agreement Date based on financial results information for the fiscal quarter ending December 31, 1997;
(xii) An Unencumbered Pool Certificate calculated as of June 30January 31, 2021 and after 1998 giving pro forma effect to the financing contemplated by this Agreement and the use consummation of the proceeds of the Loans to be funded on the Effective Date;
transactions contemplated hereby (x) A letter from the agents under the Existing Agreement providing information regarding including the payment in full of amounts outstanding thereunder and providing for any Indebtedness referred to in the termination thereoffollowing subsection);
(xixiii) Such due diligence A pay-out letter from each holder of any Indebtedness being paid in full with respect the proceeds of the initial borrowing of Loans hereunder, setting forth, among other things, the total amount of Indebtedness owing by the Borrower to such holder, such holder's confirmation that effective upon payment in full of such Indebtedness that all Liens securing such Indebtedness will be automatically terminated, and appropriate wire transfer instructions to effect the Unencumbered Pool as the Agent may reasonably requirepayment in full of such Indebtedness; and
(xiixiv) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its 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 to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each Lender (if that has requested by such Lender) that it receive a Note and complying with the applicable provisions of Section 2.92.12. and the Swingline Note executed by the Borrower;
(iii) An opinion of counsel to The Guaranty executed by the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselParent;
(iv) A copyAn opinion of the general counsel of the Parent and the other Loan Parties, addressed to the Administrative Agent, the Lenders and the Swingline Lender, addressing the matters set forth in Exhibit I;
(v) An opinion of ▇▇▇▇▇▇ & Bird, LLP, counsel to the Administrative Agent, addressed to the Administrative Agent, the Lenders and the Swingline Lender, addressing the enforceability of the Loan Documents and such matters as the Administrative Agent shall reasonably request;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary of the Parent with respect to each of the officers of the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which the Parent or the Borrower is a party and to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation), on behalf of the Borrower, Notices of Revolving Borrowing, Notice of Term Loan Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing and requests for Letters of Credit;
(vii) a certified copy (certified by the Secretary or Assistant Secretary of the Parent) of all necessary action taken by the Parent to authorize the execution, delivery and performance of the Loan Documents to which either the Parent or the Borrower is a party;
(viii) the declaration of trust of the Parent and the certificate of limited partnership of the Borrower, in each case, certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, formation of the corporate charter or other formation document of the Borrower as in effect on such date of certificationPerson;
(vix) A certificate a Certificate of good standing Good Standing or certificate of similar meaning with respect to the Parent and the Borrower issued as of a recent date by the Secretary of State of the state State of formation of the Borrower each such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower each such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vix) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Parent and the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a Parent and the limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a partyBorrower;
(viiixi) The the Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Administrative Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxii) A a Compliance Certificate, dated Certificate calculated as of the Effective DateMarch 31, based on financial results as of June 302015, 2021 and after 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;
(xxiii) A letter from the agents under the Existing Agreement providing information regarding the payment in full a Notice of amounts outstanding thereunder and providing for the termination thereofTerm Loan Borrowing;
(xixiv) Such due diligence with respect a Notice of Revolving Borrowing;
(xv) a copy of a fully executed amendment to the Unencumbered Pool Term Loan Agreement, amending the terms of the Term Loan Agreement so that it contains terms and definitions that are substantially the same as the Agent may reasonably require; andterms of Sections 6.1.(h), 8.4., 9.4., 9.7. and 10.1(e)(i) and the definitions of “Recourse Indebtedness”, “Capitalization Rate”, “Eligible Ground Lease”, “Eligible Unencumbered Property”, “Net Operating Income” and “S&P” in each case, set forth in this Agreement;
(xiixvi) Such such other documents, agreements and instruments as the Administrative Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Administrative Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any 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 which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), 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;
(iii) The Borrower 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Corporate Office Properties, L.P.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to Administrative Agent (some of which were previously received by Administrative Agent as noted below and nothing new is required as of the Agent:Agreement Date):
(i) Counterparts counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each Lender (if requested by such Lender) the Lenders, and complying with the applicable provisions terms of Section 2.9this Agreement (previously received);
(iii) An opinion of counsel to the Borrower, addressed to the Agent Guaranty and the LendersHazardous Materials Indemnity Agreement executed by Guarantor (previously received), in form and substance acceptable as consented to Agent’s counselbelow, together with all of the other Loan Documents executed by Borrower(previously received);
(iv) A copythe Security Documents (previously received), as amended of even date herewith, and other Loan Documents, executed by Borrower and the other parties thereto (previously received);
(v) an opinion of counsel to Borrower and Guarantor, addressed to Administrative Agent and the Lenders and covering due execution, authority, no conflict, enforceability, local matters and other matters, all as required by Administrative Agent;
(vi) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of Borrower, Borrower Member, Guarantor and such other Persons as determined by Administrative Agent, certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative state of the Borrower, to be true and complete, formation of the corporate charter or other formation document of the Borrower as in effect on such date of certificationPerson;
(vvii) A a certificate of good standing (or certificate of similar meaning meaning) with respect to the Borrower, Borrower Member, Guarantor and such other Persons as determined by Administrative Agent, issued as of a recent date by the Secretary of State of the state of formation of the Borrower each such Person, and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(viviii) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower, Borrower Member, Guarantor and such other Persons as determined by Administrative Agent, with respect to each of the officers of the Borrower such Person authorized to execute and deliver the Loan Documents to which the Borrower such Person is a party, and each in the case of the officers of the Borrower Borrower, authorized to execute and deliver on behalf of Borrower Notices of Borrowing, Notices of Continuation Conversion and Notices of Conversion and to request the issuance of Letters of CreditContinuation;
(viiix) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower, Borrower of Member, Guarantor and such other Persons as determined by Administrative Agent of: (i) the by-laws of such Person, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity entity; and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) The Fees a Borrowing Base Certificate calculated as of December 31, 2017 (but assuming that the total amount of the Loans outstanding for purposes of calculating Testing Debt Yield and Testing LTV therein will be the amount of the Loans disbursed to Borrower on the Effective Date);
(xi) a Compliance Certificate for Guarantor’s fiscal quarter ending December 31, 2017;
(xii) a Disbursement Instruction Agreement effective as of or prior to the Agreement Date (previously received);
(xiii) UCC, tax, judgment and lien search reports with respect to Borrower, Borrower Member, Guarantor and such other Persons as determined by Administrative Agent, and each Borrowing Base Property, in all necessary or appropriate jurisdictions, indicating that there are no Liens of record on such Property or related to such Persons other than Permitted Liens;
(xiv) copies of all Material Contracts and Specified Derivatives Contracts in existence on the Agreement Date (previously received);
(xv) copies of the form of Tenant Lease to be used and each Tenant Lease entered into as of the Agreement Date with respect to such Property (previously received);
(xvi) the Fee Letter;
(xvii) evidence that the Fees, if any, then due and payable under Section 3.6(c)3.5, together with all other fees, expenses and reimbursement amounts due and payable to Administrative Agent and any other Fees payable of the Lenders, including, the fees and expenses of counsel to the Administrative Agent, the Titled Agents and the Lenders on or prior to the Effective Datehave been paid;
(ixxviii) A Compliance Certificateinsurance certificates, dated as or other evidence, providing that the insurance coverage required under Section 8.5 (including both property and liability insurance) is in full force and effect and stating that the coverage shall not be cancelable or materially changed without ten (10) days’ prior written notice to Administrative Agent of any cancellation for nonpayment or premiums, and not less than thirty (30) days’ prior written notice to Administrative Agent of any other cancellation or any modification (including a reduction in coverage), together with appropriate evidence that Administrative Agent, for its benefit and the benefit of the Effective DateLenders, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use Specified Derivatives Providers, is each named as a lender’s loss payee and additional insured, as appropriate, on all insurance policies that Borrower, Guarantor or any other Affiliate of the proceeds of the Loans Borrower actually maintains with respect to be funded any Property and improvements on the Effective Datesuch Property;
(xxix) A letter Subordination, Non-Disturbance and Attornment Agreements, and estoppel certain from the agents under the Existing Agreement providing information regarding the payment such tenants as may be required by Administrative Agent, in full of amounts outstanding thereunder form and providing for the termination thereofsubstance reasonably acceptable to Administrative Agent (previously received);
(xixx) Such all information requested by Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act;
(xxi) payment of mortgage and recording taxes, to the extent applicable, and delivery of such evidence and memoranda thereof as Administrative Agent shall reasonably require;
(xxii) delivery of all other space leases and subleases, management agreements, leasing agreements, parking agreements, licenses and permits, maintenance and service agreements, labor agreements, equipment leases, capital and operating budgets, copies of prior tax bills, flood zone certifications and other similar due diligence with respect to the Unencumbered Pool information and materials as the Administrative Agent may shall reasonably requirerequire (previously received);
(xxiii) a zoning report (PZR or similar), property condition report, Phase I and, if applicable, Phase II environmental audit as Administrative Agent shall reasonably require (previously received); and
(xiixxiv) Such such other documents, agreements documents and instruments as the Agent on behalf of the Lenders Administrative Agent, or any Lender through Administrative Agent, may reasonably request.; and
(b) In the good faith judgment of the Agent and the LendersAdministrative 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 which has a Material Adverse Effect (as reasonably determined by Administrative Agent) since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries Guarantor 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 EffectDate;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened against any Borrower or Guarantor, the adverse determination of which could reasonably be expected to (1) result in would have a Material Adverse Effect (except as set forth in Schedule 6.1(ireasonably determined by Administrative Agent)), or (2) 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;
(iii) The Borrower and its Subsidiaries Guarantor 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 of: (1A) any Applicable Law Law; or (2B) any agreement, document or instrument to which the Borrower or any Subsidiary Guarantor is a party or by which any of its 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 to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Revolving Loan Agreement (RREEF Property Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence 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 following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each Lender (or Designated Lender, if requested by such Lenderapplicable) and complying with the applicable provisions of Section 2.92.11., and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copy, The certificate or articles of incorporation of the Borrower certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer Secretary or similar representative Assistant Secretary of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing 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 the Borrower its incorporation and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which 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;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies, certified by the Secretary or Assistant Secretary of the Borrower, of (i) the bylaws of the Borrower and (ii) all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(viii) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor that is not an Immaterial Subsidiary certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Guarantor;
(ix) A certificate of good standing or certificate of similar meaning with respect to each Guarantor that is not an Immaterial Subsidiary issued as of a recent date by the Secretary of State of the state of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(x) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor that is not an Immaterial Subsidiary with respect to each of the officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xi) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor that is not an Immaterial Subsidiary of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixii) An opinion of counsel to the Loan Parties (other than the Immaterial Subsidiaries), addressed to the Agent, the Lenders and the Swingline Lender, addressing the matters set forth in Exhibit M;
(xiii) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxiv) A Compliance Certificate, dated Certificate calculated as of the Effective Date, based on financial results as of June September 30, 2021 and after 2005 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require); and
(xiixv) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), 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;
(iii) The Borrower 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Credit Issuer to issue the initial Letter of Credit pursuant to the terms and conditions of this Agreement is subject to the following conditions precedent:
(a) The Agent condition precedent that the Letter of Credit Issuer shall have received each on or before the day of issuance of the initial Letter of Credit the following, each dated on or before such day, in form and substance reasonably satisfactory to the Agent:Letter of Credit Issuer (the first day when all such conditions have been satisfied or waived is hereinafter referred to as the "Effective Date"):
(a) Duly executed signature pages to this Agreement and the CitiDirect Documents (including by facsimile or other electronic means) in a sufficient number of signed counterparts as requested by the Letter of Credit Issuer.
(b) A certificate of the Secretary or an Assistant Secretary of each Applicant certifying (i) Counterparts of this Agreement executed by each the resolutions of the parties hereto;
board of directors of such Applicant authorizing the execution of each Credit Document to which such Applicant is a party, (ii) Notes executed by the Borrowercharter and bylaws or other applicable organizational documents of such Applicant, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An certificates of existence, good standing and qualification from appropriate government officials with respect to each Applicant, (iv) all other documents evidencing any necessary company action and governmental, shareholder and third-party consents, approvals and filings, if any, with respect to each such Credit Document and the transactions thereunder, and (v) the names and true signatures of the officers (or agents) authorized to sign each Credit Document to be executed by it.
(c) A certificate of a Responsible Officer of Cameron certifying (i) that the representations and warranties contained in each Credit Document are true and correct as of the Effective Date, (ii) as to the satisfaction of all conditions set forth in this Section 3.01, (iii) no Event of Default or Default exists on the Effective Date or would result therefrom, (iv) the absence of any Material Adverse Effect since the date of Cameron's last audited financial statements, and (v) the annual Consolidated audited financial statements of Cameron and its Subsidiaries for the fiscal year ended December 31, 2009 and the quarterly Consolidated unaudited Consolidated financial statements of Cameron and its Subsidiaries for the fiscal quarters ended March 31, 2010 and June 30, 2010, in each case delivered to the Letter of Credit Issuer prior to the Effective Date, are true and correct copies of such financial statements, fairly present the Consolidated financial condition of Cameron as of such dates, and were, to the best of such officer's knowledge, prepared in conformity with GAAP.
(d) Certificates of existence, good standing and qualification from appropriate state officials with respect to Cameron and each Subsidiary Applicant and foreign equivalents for each Non-U.S. Applicant.
(e) A legal opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel to the BorrowerApplicants, addressed including without limitation certain specific no-conflicts opinions to the Agent JPMorgan Credit Agreement and the LendersCameron's other debt documents, in form and substance acceptable reasonably satisfactory to Agent’s counsel;the Letter of Credit Issuer.
(ivf) A copylegal opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, certified Esq., in-house counsel to the Applicants, in form and substance reasonably satisfactory to the Letter of Credit Issuer.
(g) Evidence of appointment by each Non-U.S. Applicant of CT Corporation System as its domestic process agent in accordance with Section 7.17.
(h) The audited Consolidated financial statements of Cameron and its Subsidiaries dated as of a recent date December 31, 2009 and unaudited Consolidated financial statements of Cameron and its Subsidiaries dated as of March 31, 2010 and June 30, 2010.
(i) All documents required for the establishment of the Reimbursement Account, executed by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;Applicant.
(vj) A certificate of good standing There shall exist no pending 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 the Borrower and a certificate of qualification to transact business threatened litigation, request, directive, injunction, stay, order, or other comparable certificates issued by each Secretary of State (and any state department of taxationproceeding since December 31, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified 2009 that could reasonably be expected to have a Material Adverse Effect;.
(vik) A certificate All documentation and other information that the Applicants are required by bank regulatory authorities to deliver to the Letter of incumbency signed Credit Issuer under applicable "know your customer" and anti-money laundering rules and regulations, including Title III of the Patriot Act, that has been identified by the Secretary or Assistant Secretary (or other individual performing similar functions) Letter of Credit Issuer and notified to the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;Applicants.
(viil) Copies certified Evidence of payment by the Secretary or Assistant Secretary (or other individual performing similar functions) Applicants of all accrued fees, expenses and disbursements required to be paid by the Borrower Applicants on the date hereof, including the fees and expenses of (i) counsel to the by-laws Letter of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;Credit Issuer.
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiim) Such other documents, governmental certificates, conditions, agreements and instruments lien searches as the Agent on behalf Letter of the Lenders Credit Issuer may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Continuing Agreement for Letters of Credit (Cameron International Corp)
Initial Conditions Precedent. The obligation of the Lenders DIP Lender to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a make its initial DIP Loan or the issuance of a Letter of Credit, hereunder is subject to satisfaction of the following conditions precedent:
(a) The Agent shall have received each DIP Lender’s receipt of the following, each of which shall be originals (or telecopies or portable document format (PDF) copies, in each case followed promptly by originals) each properly executed by a Responsible Officer of the signing Borrower, 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 AgentDIP Lender:
(i) Counterparts executed counterparts of this Agreement executed by each of the parties heretoand all Collateral Documents;
(ii) Notes executed by delivery to the Borrower, payable DIP Lender of any certificated securities representing equity interests pledged to each the DIP Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9pursuant to any pledge agreement;
(iii) An opinion a Note executed by Borrowers in favor of counsel the DIP Lender;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as the DIP Lender may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Borrower is a party;
(v) a certificate signed by a Responsible Officer of each of the Borrowers certifying that the conditions specified in Section 4.2(a) and (b) have been satisfied;
(vi) evidence satisfactory to the Borrower, addressed DIP Lender that all insurance required to be maintained pursuant to the Agent Loan Documents has been obtained and is in effect; and
(vii) resignations in form and substance satisfactory to the DIP Lender signed (but undated) by each of the five directors designated or appointed by any Borrower of each property owner’s or home owner’s association with respect to the Project.
(b) Each of the Interim Borrowing Order and the LendersCash Management Order shall have been entered, shall be in full force and effect, and shall not have been reversed, vacated or stayed, or modified without the prior written consent of the DIP Lender, and all other necessary consents and approvals to the transactions contemplated hereby shall have been obtained and shall be reasonably satisfactory to the DIP Lender.
(c) The DIP Lender shall have received the initial Approved Budget which shall be in form and substance satisfactory to the DIP Lender.
(d) All motions and other documents to be filed with and submitted to the Bankruptcy Court in connection with this Agreement (including, without limitation, the DIP Orders) shall be in form and substance reasonably satisfactory to the DIP Lender.
(e) Receipt by the DIP Lender of an environmental indemnity agreement in form and substance acceptable to Agent’s counsel;the DIP Lender executed by Borrowers and by ▇▇▇▇ ▇▇▇▇▇▇▇, in his individual capacity, as to all environmental and permitting matters within his actual knowledge on the Closing Date.
(ivf) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing 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 the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is Any fees required to be so qualified and where paid to the failure to be so qualified could reasonably be expected to DIP Lender on or before the Closing Date shall have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary been paid (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of shall be paid from the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably requestinitial DIP Loan).
(bg) In Borrowers shall have paid (or shall pay from the good faith judgment proceeds of the Agent initial DIP Loan) all fees, charges and disbursements of counsel to the DIP Lender to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrowers and the Lenders:DIP Lender).
(ih) There The Closing Date shall not have occurred on or become known to the Agent or any of the Lenders any eventbefore , 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan Documents2010.
Appears in 1 contract
Initial Conditions Precedent. The effectiveness of this Agreement and 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 following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, Borrower payable to each Lender (if other than any Lender that has requested by such Lendernot to receive a Note) and complying with the applicable provisions of Section 2.92.10 (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An The Guaranty executed by each Guarantor in existence as of the Effective Date;
(iv) A favorable opinion of counsel to the BorrowerObligors, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified addressing such matters as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationAgent may reasonably require;
(v) A certificate The Governing Documents of good standing the Borrower, each Guarantor and each general partner, managing member (or certificate Person performing similar functions) of similar meaning with respect to the Borrower issued such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vi) A good standing certificate with respect to the Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Unencumbered Assets owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditConversion;
(viiviii) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiiix) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixx) A pro forma Compliance CertificateCertificate calculated as of March 31, dated 2015;
(xi) A certificate signed by a Responsible Officer of the Borrower certifying that each Property to be treated as an Unencumbered Asset on the Effective Date satisfies all of the requirements for an Unencumbered Asset set forth in the definition thereof;
(xii) The documentation and other information requested by any Lender that is required by regulatory authorities under the applicable “know your customer” rules and regulations and anti-money laundering rules and regulations including, without limitation, the Patriot Act;
(xiii) A Disbursement Instruction Agreement effective as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiixiv) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the 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, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date 2015 that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(iii) The Borrower Borrower, the other Obligors and its their respective 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(iv) There The Amendment and Restatement Transaction shall not have occurred become effective prior to or exist any other material disruption of financial or capital markets that could substantially simultaneously herewith on terms and conditions reasonably be expected satisfactory to materially and adversely affect the transactions contemplated by the Loan DocumentsAgent in its discretion.
Appears in 1 contract
Sources: Term Loan Agreement (Columbia Property Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.8.;
(iii) The Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) An opinion of legal counsel to the BorrowerLoan Parties, addressed to the Agent and the Lenders, addressing the matters set forth in form and substance acceptable to Agent’s counselExhibit F;
(ivv) A copy, The articles of incorporation of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative state of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationits incorporation;
(vvi) A certificate of good standing 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 the Borrower its incorporation and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which 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;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices the Notice of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditConversion;
(viiviii) Copies Copies, certified by the Secretary or Assistant Secretary of the Borrower, of (i) the bylaws of the Borrower and (ii) all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(ix) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the state of formation of such Guarantor;
(x) A certificate of good standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by the Secretary of State of the state of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(xi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the Borrower officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) The Fees then due A certificate from a Responsible Officer of the Borrower to the effect that (x) all representations and payable under Section 3.6(c)warranties of the Loan Parties contained in the Loan Documents are true, correct and any other 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;
(xiv) Any Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxv) A Compliance Certificate, dated Certificate calculated as of the Effective DateDecember 31, based on financial results as of June 30, 2021 and after 2007 (giving pro forma effect to this Agreement);
(xvi) The Notice of Borrowing from the financing contemplated by this Agreement and Borrower for the use of Loans indicating how the proceeds thereof are to be made available to the Borrower, and if any of the Loans initially are to be funded on LIBOR Loans, the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requireInterest Periods therefore; and
(xiixvii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.;
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), 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;
(iii) The Borrower 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (UDR, Inc.)
Initial Conditions Precedent. The effectiveness of this Agreement and 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 following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, Borrower payable to each Lender (if other than any Lender that has requested by such Lendernot to receive a Note) and complying with the applicable provisions of Section 2.92.10 (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An The Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) A favorable opinion of counsel to the BorrowerObligors, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified addressing such matters as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationAgent may reasonably require;
(v) A certificate The Governing Documents of good standing the Borrower, each Guarantor and each general partner, managing member (or certificate Person performing similar functions) of similar meaning with respect to the Borrower issued such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vi) A good standing certificate with respect to the Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Unencumbered Assets owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiiix) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full pro forma Compliance Certificate calculated as of amounts outstanding thereunder and providing for the termination thereofSeptember 30, 2018;
(xi) Such due diligence with respect A certificate signed by a Responsible Officer of the Borrower certifying that each Property to be treated as an Unencumbered Asset on the Effective Date satisfies all of the requirements for an Unencumbered Asset set forth in the definition thereof;
(A) The documentation and other information requested by any Lender that is required by regulatory authorities under the applicable “know your customer” rules and regulations and (B) to the Unencumbered Pool extent the Borrower qualifies as a “legal entity customer” under the Agent may reasonably requireBeneficial 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 condition set forth in this clause (B) shall be deemed to be satisfied); and
(xiixiii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the 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, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date 2017 that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;; and
(iii) The Borrower Borrower, the other Obligors and its their respective 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Columbia Property Trust, Inc.)
Initial Conditions Precedent. The obligation Closing Date shall be deemed to have occurred upon the satisfaction 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 following conditions precedent:precedent (the "Initial Conditions Precedent"):
(ai) The Agent Lender shall have received each of the followingagreements, opinions, reports, approvals, consents, certificates and other documents set forth on the closing document list attached hereto as Exhibit 17(a) (the "Closing Documents"), each of which documents shall be satisfactory in both form and substance satisfactory to the AgentLender and Lender's counsel, which such Closing Documents shall include, without limitation:
(iA) Counterparts of this Agreement executed by each the Pre-Closing Financials (which in the case of the parties heretoFiscal Year 2002 financial statements shall not be materially different from the draft internally prepared statements delivered to Lender prior to the Closing Date), which shall be delivered to Lender three (3) Business Days prior to the Closing Date;
(B) the Acquisition Documents and the Designated Contracts; and
(C) legal opinions from counsel for Borrowers opining as to such matters that may be required by Lender and its counsel, including certain matters as to the validity and enforceability of Lender's security interest, including, to the best of such counsel's knowledge, the absence of third-party claims with respect to the rights of Borrowers and Lender in the Accounts of Borrowers
(ii) Notes executed by Lender shall have completed all field examinations and audits with respect to the BorrowerBorrowers and the Collateral that Lender, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;in its sole discretion, may require.
(iii) An opinion of counsel Since March 30, 2002, no Material Adverse Change shall have occurred and no action or proceeding shall be pending, or to the knowledge of Borrowers, threatened against the Borrowers or the assets of any of them that might have a Material Adverse Effect with respect to any Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;.
(iv) A copyLender shall have received payment in full of all fees and expenses payable to it by Borrowers or any other Person in connection herewith, certified as of a recent date by the appropriate officer on or before disbursement of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;initial Loans hereunder.
(v) A certificate The assets of good standing Borrowers shall be free of all liens and encumbrances, other than Permitted Liens, and Borrowers shall have obtained any lien release documents or certificate of similar meaning instruments required by Lender with respect to any such lien on the assets of any Borrower issued as of other than a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;Permitted Lien.
(vi) A certificate Lender shall have received reports regarding the accounts payable and accounts receivable of incumbency signed by Borrowers for June 29, 2002 and reports regarding information on the Secretary or Assistant Secretary (or sales and collections of Borrowers through the date hereof, along with such other individual performing similar functions) collateral and financial information as Lender shall request, all of the Borrower with respect which shall be satisfactory to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;Lender.
(vii) Copies certified by Lender shall have determined that as of the Secretary or Assistant Secretary Closing Date, immediately after giving effect to (or other individual performing similar functionsA) the making of the initial Loans, if any, requested to be made on the date hereof, (B) the issuance of the initial Letter(s) of the Borrower of Credit, if any, requested to be made on such date, (iC) the by-laws payment of all fees due to Lender, (including the unpaid portion of the commitment fee provided for in subsection 4(c)(i) hereof) upon such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity date and (iiD) the payment or reimbursement by Borrowers of Lender for all corporateclosing costs and expenses incurred in connection with the transactions contemplated hereby, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance Borrowers shall have Undrawn Availability of the Loan Documents to which it is a party;at least $750,000.
(viii) The Fees then due Borrowers shall have executed and payable under Section 3.6(c), and any other Fees payable delivered to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such Lender all such other documents, instruments and agreements and instruments as the Agent on behalf of the Lenders may which Lender determines are reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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; andhereby.
(ivix) 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 The transactions contemplated by the Loan DocumentsAcquisition Documents shall have been consummated in accordance with the terms thereof and all applicable laws.
Appears in 1 contract
Sources: Loan and Security Agreement (Am Communications Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event initial disbursement of Loan proceeds 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 counterparts of this Agreement executed by each of the parties hereto;
(iib) Notes executed by the Borrower, payable to each applicable Lender (if requested by such Lender) and complying with the applicable provisions terms of Section 2.92.6, but excluding any Lender that has requested that it not receive Notes;
(iiic) An the Guaranty executed by each of the Guarantors initially to be a party thereto;
(d) an opinion of counsel to the BorrowerBorrower and such other Loan Parties organized in Delaware as the Administrative Agent may request, addressed to the Administrative Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(ive) A copythe certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative state of the Borrower, to be true and complete, formation of the corporate charter or other formation document of the Borrower as in effect on such date of certificationLoan Party;
(vf) A a certificate of good standing (or certificate of similar meaning meaning) with respect to the Borrower each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party within thirty (30) days of the Borrower date hereof, and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vig) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party with respect to each of the officers of the Borrower such Person authorized to execute and deliver the Loan Documents to which the Borrower such Person is a party, and each in the case of the officers Borrower, authorized to execute and deliver on behalf of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request Loan Interest Rate Request Forms in the issuance of Letters of Creditforms attached hereto as Exhibit C;
(viih) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party of (iA) the by-laws of such PersonLoan Party, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (iiB) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiii) The Fees then due a Compliance Certificate and payable under Section 3.6(c)an Unencumbered Asset Value Certificate calculated on an estimated basis using financial information not yet finalized 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 any other Fees payable fully executed and completed Borrower Authorization Forms effective as of the Agreement Date;
(l) a complete listing of all Subsidiaries which are Non-Guarantor Subsidiaries;
(m) Borrower shall have paid to the Administrative Agent, for the Titled Agents benefit of Lenders, all interest and other fees due under the Lenders on or prior Original Credit Agreement, prorated to the Effective Date;
(ixn) A Compliance CertificateLenders, dated as of applicable, shall have completed whatever balancing transfers amongst themselves as are necessary in order to result in each Lender having the Effective Date, based outstanding balances referenced on financial results as of June 30, 2021 and after 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 DateSchedule 1.4 attached hereto;
(xo) A letter from the agents under the Existing Agreement providing information regarding the payment in full of all fees, expenses and reimbursement amounts outstanding thereunder due and providing for the termination thereof;
(xi) Such due diligence with respect payable to the Unencumbered Pool as Administrative Agent and any of the Agent may reasonably requireLenders, including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and
(xiip) Such such other documents, agreements agreements, and instruments as the Agent on behalf of Administrative Agent, or any Lender through the Lenders Administrative Agent, may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Loan Agreement (Equity One, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each Lender (if that has requested by such Lender) that it receive a Note and complying with the applicable provisions of Section 2.92.12. and the Swingline Note executed by the Borrower;
(iii) An opinion of counsel to The Guaranty executed by the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselParent;
(iv) A copyAn opinion of the general counsel of the Parent and the other Loan Parties, addressed to the Administrative Agent, the Lenders and the Swingline Lender, addressing the matters set forth in Exhibit I;
(v) An opinion of ▇▇▇▇▇ Day, counsel to the Administrative Agent, addressed to the Administrative Agent, the Lenders and the Swingline Lender, addressing the 72 enforceability of the Loan Documents and such matters as the Administrative Agent shall reasonably request;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary of the Parent with respect to each of the officers of the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which the Parent or the Borrower is a party and to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation), on behalf of the Borrower, Notices of Revolving Borrowing, Notice of Term Loan Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing and requests for Letters of Credit;
(vii) a certified copy (certified by the Secretary or Assistant Secretary of the Parent) of all necessary action taken by the Parent to authorize the execution, delivery and performance of the Loan Documents to which either the Parent or the Borrower is a party;
(viii) the declaration of trust of the Parent and the certificate of limited partnership of the Borrower, in each case, certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, formation of the corporate charter or other formation document of the Borrower as in effect on such date of certificationPerson;
(vix) A certificate a Certificate of good standing Good Standing or certificate of similar meaning with respect to the Parent and the Borrower issued as of a recent date by the Secretary of State of the state State of formation of the Borrower each such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower each such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vix) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Parent and the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a Parent and the limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a partyBorrower;
(viiixi) The the Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Administrative Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxii) A a Compliance Certificate, dated as of the Effective Date, based on financial results Certificate calculated as of June 30, 2021 and after 2018, 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;
(xxiii) A letter from a Beneficial Ownership Certification;
(xiv) a Notice of Revolving Borrowing;
(xv) evidence reasonably satisfactory to the agents Administrative Agent that the Revolving Commitments (as defined in the Existing Credit Agreement) under the Existing Credit Agreement providing information regarding have been permanently reduced to zero, and that no Revolving Lender (as defined in the payment Existing Credit Agreement) has any Revolving Credit Exposure (as defined in full of amounts outstanding thereunder and providing for the termination thereofExisting Credit Agreement) thereunder;
(xixvi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such such other documents, agreements and instruments as the Administrative Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Administrative Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any 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 (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), 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;
(iii) The Borrower 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Corporate Office Properties, L.P.)
Initial Conditions Precedent. The obligation Closing Date shall be deemed to have occurred upon the satisfaction 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 following conditions precedent:precedent (the "Initial Conditions Precedent"):
(ai) The Agent Lender shall have received each of the followingagreements, opinions, reports, approvals, consents, certificates and other documents set forth on the closing document list attached hereto as Schedule 16(a) (the "Closing Documents"), each of which documents shall be satisfactory in both form and substance satisfactory to Lender and Lender's counsel, which such Closing Documents shall include, without limitation, legal opinions from counsel for Borrower and the Guarantors opining as to such matters that may be required by Lender and its counsel, including certain matters as to the Agent:
(i) Counterparts validity and enforceability of this Agreement executed by each of Lender's security interests in the parties hereto;Collateral.
(ii) Notes executed by Since March 31, 2010, no Material Adverse Change shall have occurred and no action or proceeding shall be pending, or to the knowledge of Borrower, threatened against the Borrower, payable any Guarantor or any of their respective assets that might have a Material Adverse Effect with respect to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;Borrower or any Guarantor.
(iii) An opinion Lender shall have received payment in full of counsel all fees and expenses payable to it by Borrower or any other Person in connection herewith, on or before disbursement of the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;initial Loans hereunder.
(iv) A copyThe Collateral shall be free of all liens and encumbrances, certified as of a recent date by the appropriate officer of the State in which the Borrower is organizedother than Permitted Liens, and Borrower shall have obtained any lien release documents or instruments required by Lender with respect to any such lien on the assets of Borrower or any Guarantor (other than a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;Permitted Lien).
(v) A certificate of good standing 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 the The Borrower and a certificate of qualification each Guarantor shall have executed and delivered to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of Lender all such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, instruments and agreements and instruments as the Agent on behalf of the Lenders may which Lender determines are reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan Documentshereby.
Appears in 1 contract
Sources: Loan and Security Agreement (Dynasil Corp of America)
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 following conditions precedent:
(a) The Agent shall Interim Lenders will be obliged to comply with Clause 5.4 (Interim Lenders' participation - Loans) in relation to any Utilisation if, on or before the Utilisation Date for that Utilisation, the Company has delivered to the Interim Facility Agent, the Majority Lenders or the Majority Arrangers, or the Interim Facility Agent, the Majority Lenders or the Majority Arrangers have received each of waived the followingrequirement to deliver, the documents and other evidence listed in Schedule 2 (Conditions precedent) (the "Initial Conditions Precedent") in form and substance satisfactory to the Interim Facility Agent, the Majority Lenders or the Majority Arrangers each acting reasonably and in good faith (unless specified therein to be in another form or substance or where any such document or evidence is expressly not required to be in form and substance satisfactory to the Interim Facility Agent, the Majority Lenders or the Majority Arrangers in accordance with the terms of in Schedule 2 (Conditions Precedent)). Any Initial Condition Precedent (or other conditions to, or requirements in respect of, the initial Utilisation of the Interim Facilities (howsoever described)) may be amended or (including the requirement to deliver any Initial Conditions Precedent) waived by the Interim Facility Agent, the Majority Lenders or the Majority Arrangers, each acting reasonably and in good faith.
(b) The Interim Facility Agent (or, as the case may be, the Majority Lenders or the Majority Arrangers) shall notify the Company and the Interim Lenders promptly upon being satisfied that the conditions described in paragraph (a) above have been met and/or waived. Other than to the extent that the Majority Lenders or the Majority Arrangers notify the Interim Facility Agent in writing to the contrary before the Interim Facility Agent gives such notification, the Arrangers authorise (but do not require) the Interim Facility Agent to give that notification. The Interim Facility Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
(c) For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, a Utilisation Request may be delivered at any time prior to:
(i) Counterparts the delivery of this Agreement executed by each (or any waiver of the parties hereto;requirement to deliver) the Initial Conditions Precedent; and/or
(ii) Notes executed by the Borrower, payable to each Lender (if requested by any or all such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, Initial Conditions Precedent being confirmed as having been delivered in a form and substance acceptable to Agent’s counsel;that is satisfactory.
(ivd) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing or certificate of similar meaning with respect Pursuant to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporationCP Satisfaction Letter, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Interim Facility Agent, the Titled Agents Majority Lenders and the Lenders on or prior to Majority Arrangers have confirmed that they have received and are satisfied with all Initial Conditions Precedent and confirm and agree that the Effective Date;
(ix) A Compliance CertificateInitial Conditions Precedent, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use requirements of the proceeds of the Loans to be funded on the Effective Date;
paragraphs (xa) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any eventthis Clause 4.1, 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan Documentsare irrevocably satisfied.
Appears in 1 contract
Sources: Interim Facilities 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 following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, Borrower payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.11, Competitive Advance Notes executed by the Borrower payable to each Lender, and the Swingline Note executed by the Borrower payable to the Agent (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyfavorable opinion of counsel to the Obligors, certified addressed to the Agent, the Lenders and the Swingline Lender, addressing such matters as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationAgent may require;
(v) A certificate The Governing Documents of good standing Borrower, each Guarantor and each general partner, managing member (or certificate Person performing similar functions) of similar meaning with respect to the Borrower issued such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vi) A good standing certificate with respect to Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Unencumbered Assets owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation Swingline Borrowings and Notices of Conversion Competitive Bid Requests and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiiix) A copy of (x) the detailed description of the Indebtedness of the Borrower, the other Obligors and their respective Subsidiaries included in the most recently published 10Q, 10K and a Quarterly Supplemental Package (substantially in the form provided to Agent prior to the date hereof), and (y) each Material Contract, in each case certified as true, correct and complete by the chief operating officer or chief financial officer of the Borrower;
(x) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixxi) A Compliance Certificate, dated Certificate calculated as of the Effective DateSeptember 30, based on financial results 2003 and a draft of a Compliance Certificate calculated as of June 30December 31, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require2003; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Borrower, the other Obligors, and its their respective Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(iii) The Borrower Borrower, the other Obligors and its their respective 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
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 following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the BorrowerBorrowers, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the BorrowerBorrowers, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the each State in which the each Borrower is organized, and a duly authorized officer or similar representative of the such Borrower, as applicable, to be true and complete, of the corporate charter or other formation document of the such Borrower as in effect on such date of certification;
(v) A certificate of good standing or certificate of similar meaning with respect to the each Borrower issued as of a recent date by the Secretary of State of the state of formation of the each such Borrower and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the such 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;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the each Borrower with respect to each of the officers of the such Borrower authorized to execute and deliver the Loan Documents to which the such Borrower is a party, and in the case of the Borrower Representative, each of the officers of the Borrower such Person authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the each Borrower of (i) the by-laws of such PersonBorrower, if a corporation, the operating agreement of such PersonBorrower, if a limited liability company, the partnership agreement of such PersonBorrower, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Borrower to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated Certificate and an Availability Certificate calculated as of the Effective Date, based on financial results as of June 30, 2021 and after Date (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);
(x) A letter Letters from the agents under the Existing Revolving Agreement and Existing Term Agreement, providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereofthereof (including the termination of all Liens securing such credit facilities);
(xi) The Eligible Real Estate Qualification Documents required by the Agent for each Unencumbered Property included in the Unencumbered Pool as of the Effective Date shall have been delivered to the Agent at the Borrowers’ expense and shall be in form and substance satisfactory to the Agent;
(xii) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiixiii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the 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 EPR and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the any Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower EPR and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the any Borrower or any Subsidiary is a party or by which any of 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 any 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 transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Epr Properties)
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 following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, Borrower payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.12, and the Swingline Note executed by the Borrower payable to the Agent (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyfavorable opinion of counsel to the Obligors, certified addressed to the Agent, the Lenders and the Swingline Lender, addressing such matters as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationAgent may reasonably require;
(v) A certificate The Governing Documents of good standing the Borrower, each Guarantor and each general partner, managing member (or certificate Person performing similar functions) of similar meaning with respect to the Borrower issued such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vi) A good standing certificate with respect to the Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Unencumbered Assets owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation Continuation, Notices of Conversion and Notices of Conversion Swingline Borrowings and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiiix) Evidence that the principal of and interest on, and all other amounts owing in respect of the First Amended and Restated $430 Million Interim Revolving Credit Agreement, dated as of July 1, 2004, among the Borrower, certain Guarantors party thereto, the lenders named therein, as Lenders, Bank of America, N.A., as Administrative Agent, and Banc of America Securities LLC, as Sole Lead Arranger and Sole Book Manager, shall have been paid in full, that any commitments to extend credit thereunder shall have been canceled or terminated and that all guaranties in respect of, and Liens securing, such Indebtedness shall have been released (or arrangements for such release satisfactory to the Agent shall have been made);
(x) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixxi) A Compliance CertificateCertificate calculated as of March 31, dated 2005;
(xii) Copies of the Unencumbered Asset Qualification Documents for each of the Properties included as an Unencumbered Asset as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiixiii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Borrower, the other Obligors, and its their respective Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(iii) The Borrower Borrower, the other Obligors and its their respective 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Wells Real Estate Investment Trust Ii Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, Borrower payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.10, and the Swingline Note executed by the Borrower payable to the Agent (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copy, certified The Security Documents relating to the Collateral Pool Properties existing as of a recent date by the appropriate officer of Effective Date, together with the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on Eligible Real Estate Qualification Documents for such date of certificationCollateral Pool Properties;
(v) A certificate favorable opinion of good standing counsel to the Obligors, addressed to the Agent, the Lenders and the Swingline Lender, addressing such matters as Agent may reasonably require (provided that such opinion shall not address compliance with zoning or certificate “best available remedies” under applicable state law or the enforceability of similar meaning any provisions of the Guaranty which reference California law (except with respect to the Borrower issued Collateral Properties located in California));
(vi) The Governing Documents of Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vii) A good standing certificate with respect to Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Collateral Pool Properties owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(viviii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Continuation, Notices of Conversion Conversion, Notices of Swingline Borrowings and to request the issuance of Letters of Credit;
(viiix) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiix) A copy of each document or agreement evidencing any of the Indebtedness described in Schedule 6.1(g) as Agent may request, in each case certified as true, correct and complete by the chief operating officer or chief financial officer of the Borrower;
(xi) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixxii) A pro forma Compliance Certificate, dated Certificate calculated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(xxiii) A letter from Evidence of the agents under closing of the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereofMezzanine Loan;
(xixiv) Such due diligence with respect to An original executed counterpart of the Unencumbered Pool as the Agent may reasonably requireIntercreditor Agreement; and
(xiixv) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Borrower, the other Obligors, their respective Subsidiaries and its Subsidiaries the Collateral Pool Properties delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(iii) The Borrower Borrower, the other Obligors and its their respective 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and;
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents; and
(v) The Formation Transactions and the IPO shall have been consummated, the Parent shall have received gross cash proceeds from the IPO in an amount not less than $4,500,000.00, and the Agent and the Lenders shall be satisfied with the debt, ownership, management and capitalization transactions relating to Borrower and Parent.
Appears in 1 contract
Initial Conditions Precedent. The obligation of each Bank to make Advances and the Lenders to effect or permit the occurrence obligation of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter L/C Issuers to issue Letters of Credit, pursuant to the terms and conditions of this Agreement, is subject to the following conditions precedent:
(a) The precedent that the Administrative Agent shall have received each of the following, each dated on or before the date hereof, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes : This Agreement, executed by the BorrowerBorrower and each Bank, and the executed Notes payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer order of the State in which the Borrower is organizedBanks, and a duly authorized officer or similar representative respectively. Certified copies of the Borrower, to be true and complete, resolutions of the corporate charter or other formation document Board of Directors of the Borrower as in effect on such date approving this Agreement, each Note, each Letter of certification;
(v) A certificate Credit Application, each Letter of good standing or certificate Credit and each Notice of similar meaning with respect to the Borrower issued as Borrowing, and of a recent date by the Secretary of State of the state of formation of the Borrower all documents evidencing other necessary corporate action and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxationgovernmental approvals, as applicable) of each state in which 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;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower if any, with respect to each such Loan Document and certified copies of the restated certificate of incorporation and bylaws of the Borrower. A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to execute and deliver the sign each Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents Document to which it is a party;
(viii) The Fees then due party and payable under Section 3.6(c)the other documents to be delivered hereunder. A favorable opinion of Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., counsel for the Borrower, to be delivered to, and any other Fees payable to for the benefit of, the Banks and the Administrative Agent, at the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as express instruction of the Effective DateBorrower, based on financial results substantially in the form of Exhibit C and as of June 30, 2021 and after giving pro forma effect to such other matters as any Bank through the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Administrative Agent may reasonably require; and
(xii) Such other documentsrequest. A favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, agreements ▇▇., Senior Vice President and instruments as the Agent on behalf General Counsel of the Lenders Borrower, to be delivered to, and for the benefit of, the Banks and the Administrative Agent, at the express instruction of the Borrower, in substantially the form of Exhibit D and as to such other matters as any Bank through the Administrative Agent may reasonably request.
(b) In . A letter addressed to the good faith judgment of the Administrative Agent and the Lenders:
Banks from the Borrower stating to the effect that (i) There shall not have occurred notice has been given to terminate all obligations to lend under the Prior Credit Facility and (ii) neither principal or become known to interest nor letters of credit are outstanding under the Agent or any Prior Credit Facility. A certificate of a Responsible Officer of the Lenders any eventBorrower certifying (i) there has not occurred a material adverse change since December 31, condition, situation or status since the date of the information contained 2004 in the consolidated financial and business projections, budgets, pro forma data and forecasts concerning condition of the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in taken as a Material Adverse Effect;
whole, (ii) No litigationthere has not occurred a material adverse change since March 31, action2005 in the business, suitassets, investigation liabilities (actual or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)contingent), operations, condition (other than financial) or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability prospects of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waiverstaken as a whole, and shall have made or given all necessary filings and notices(iii) compliance with the financial covenant set forth in Section 5.2(c)as of March 31, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated by the Loan Documents2005.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders Lender shall not be obligated to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a fund any Loan or make any other extension of credit hereunder unless, on or before the issuance date hereof, each of a Letter of Credit, is subject to the following conditions precedenthas been satisfied, in the sole opinion of Lender:
(a) The Agent Borrower and each other Person that is to be a party to any Loan Document shall have received executed and delivered each of the followingsuch Loan Document, all in form and substance satisfactory to Lender.
(b) Borrower shall cause to be delivered to Lender the Agentfollowing documents, each in form and substance satisfactory to Lender:
(i) Counterparts of this Agreement executed by each A copy of the parties heretoOrganic Documents of Borrower and each Subsidiary;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) An incumbency certificate and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer resolutions of the State in which the Borrower is organized, and a duly authorized officer or similar representative board of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing 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 the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary directors (or other individual performing similar functionsappropriate governing body) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each Subsidiary executing any Loan Documents, signed by a Senior Officer of the officers of the Borrower authorized to deliver Notices of Borrowingor such Subsidiary, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize authorizing the execution, delivery and performance of the Loan Documents Documents;
(iii) A favorable legal opinion of each Obligor’s outside legal counsel addressed to which it is a partyLender regarding such matters as Lender and its counsel may request;
(iv) A satisfactory Borrowing Base Certificate duly completed by Borrower, together with all supporting statements, schedules and reconciliations as required by Lender;
(v) Evidence of insurance, satisfactory to Lender and otherwise meeting the requirements of the Loan Documents;
(vi) Duly executed Lien Waiver/Access Agreements as required by this Agreement or any of the other Loan Documents;
(vii) Borrower’s financial statements for its most recently concluded Fiscal Year and its most recently concluded fiscal month and such other financial reports and information concerning Borrower as Lender may reasonably request; and
(viii) The Fees then due and payable under Section 3.6(c)All additional opinions, and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements certificates and instruments as the Agent on behalf of the Lenders other assurances that Lender or its counsel may reasonably request.
(bc) In the good faith judgment Lender shall have received, by virtue of UCC searches and/or other Lien searches, evidence satisfactory to it that there are no existing Liens with respect to any of the Agent and the Lenders:Collateral other than Permitted Liens.
(id) There Lender shall not have occurred or become known received a final payoff letter from any Person whose outstanding Debt is to be satisfied by remittance of proceeds from the Agent Loans hereunder, and, if applicable, a disbursement letter shall be required to direct the payment of Loan proceeds to such Person.
(e) Lender shall have received, in form and content satisfactory to it, all appraisals of any of the Collateral that may be required by Lender and all field exams with respect to Borrower 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 Agent and the Lenders prior to the Agreement Date that has had or could reasonably Collateral as may be expected to result in a Material Adverse Effect;required by Lender.
(iif) No litigationLender shall have received assurances, actionsatisfactory to it, suit, investigation or other arbitral, administrative or judicial proceeding shall be that no litigation is pending or threatened against any Obligor which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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) Lender determines may have a Material Adverse Effect, or .
(Bg) restrain or enjoin, impose materially burdensome [Intentionally Omitted].
(h) Borrower shall have satisfied such additional conditions on, or otherwise materially and adversely affect the ability precedent as are set forth in Item 15 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 transactions contemplated by the Loan DocumentsTerms Schedule.
Appears in 1 contract
Sources: Loan and Security Agreement (Broadwind Energy, 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 following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, Borrower payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.12, and the Swingline Note executed by the Borrower payable to the Agent (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyfavorable opinion of counsel to the Obligors, certified addressed to the Agent, the Lenders and the Swingline Lender, addressing such matters as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationAgent may reasonably require;
(v) A certificate The Governing Documents of good standing the Borrower, each Guarantor and each general partner, managing member (or certificate Person performing similar functions) of similar meaning with respect to the Borrower issued such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vi) A good standing certificate with respect to the Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Unencumbered Assets owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation Continuation, Notices of Conversion and Notices of Conversion Swingline Borrowings and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiiix) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixx) A Compliance Certificate, dated Certificate calculated as of December 31, 2008;
(xi) Copies of the Effective Date, based on financial results Unencumbered Asset Qualification Documents for each of the Properties included as an Unencumbered Asset as of June 30, 2021 and after 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;
(xxii) A letter from Payment to the agents Agent, for account of the lenders under the Existing Original Credit Agreement, of the “unused fee” and “letter of credit fee” that have accrued (and remain unpaid as of the Effective Date) under the Original Credit Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereofperiod to but excluding the Effective Date;
(xixiii) Such due diligence A fully executed copy of the Amended and Restated Term Loan Agreement and all other related agreements and documents, dated on or about the date of this Agreement, evidencing the $50,000,000 term loan facility between the Borrower, as borrower, and Bank of America, N.A., as agent and lender, together with respect evidence that the conditions precedent to the Unencumbered Pool as the Agent may reasonably requireeffectiveness of such facility have been satisfied or waived; and
(xiixiv) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) Each Departing Lender shall have received payment in full with respect to its “Commitment Percentage” (as defined in the Original Credit Agreement) of the Loans (as defined in the Original Credit Agreement) and the other obligations under the Original Credit Agreement.
(c) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Borrower, the other Obligors, and its their respective Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(iii) The Borrower Borrower, the other Obligors and its their respective 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Wells Real Estate Investment Trust Ii Inc)
Initial Conditions Precedent. The obligation of each Bank to make its initial Advance pursuant to the Lenders to effect or permit the occurrence terms and conditions 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 following conditions precedent:
precedent that (ai) the commitments to lend under the Credit Agreement dated as of December 31, 1997 among the Borrower, The Chase Manhattan Bank, as administrative agent, Barclays Bank PLC, as documentation agent, and various banks providing a $500,000,000 revolving credit facility shall have been terminated and all principal, interest and other amounts owed in connection therewith shall have been, or shall be simultaneously with the initial Advance, paid in full (each Bank that is a "Bank" under such Credit Agreement hereby waives the requirement of notice of termination set forth in section 2.15 of such Credit Agreement and the requirement of notice of prepayment set forth in Section 2.09 of such Credit Agreement and agrees, upon such termination and such payment in full, that the "General Partner Undertaking" dated December 31, 1997 and "Parent Performance Agreement" dated December 31, 1997, referred to in such Credit Agreement, shall terminate (subject to continuation or reinstatement as provided therein) and that such Bank will return to the Borrower such Bank's promissory note under such Credit Agreement with reasonable promptness marked "cancelled") and (ii) the Agent shall have received each of the following, each dated on or before May 26, 1998 in form and substance satisfactory to the Agent:
(ia) Counterparts of this Agreement executed by each The Notes to the order of the parties hereto;
(ii) Notes respective Banks, duly executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;.
(iiib) An opinion of counsel to the BorrowerThe General Partner Undertaking, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;duly executed by ECM II.
(ivc) A copyThe Parent Performance Agreement, certified as of a recent date duly executed by the appropriate officer Parent.
(d) Certified copies of the State in which resolutions of the Borrower is organizedBoard of Directors of Enron Capital II authorizing the General Partner Undertaking and authorizing Enron Capital II, as general partner of ECM II, to enter into this Agreement, each Note and a duly authorized officer or similar representative each Notice of Borrowing on behalf of ECM II as general partner of the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to be true Enron Capital II and complete, certified copies of the corporate charter or other formation document certificate of the Borrower as in effect on such date incorporation and bylaws of certification;Enron Capital II.
(ve) A certificate of good standing 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 the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or an Assistant Secretary (or other individual performing similar functions) of Enron Capital II certifying the Borrower with respect to each names and true signatures of the officers of the Borrower Enron Capital II authorized to execute sign the General Partner Undertaking and deliver to sign, on behalf of ECM II as general partner of the Borrower, each Loan Documents Document to which the Borrower is a party, party and each of the officers of the Borrower authorized other documents to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;be delivered by it hereunder.
(viif) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) Certified copies of the Borrower of (i) the by-laws of such Personall documents evidencing necessary corporate action and governmental approvals, if a corporationany, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool Parent Performance Agreement and certified copies of the restated certificate of incorporation and bylaws of the Parent.
(g) A certificate of the Secretary or an Assistant Secretary of the Parent certifying the names and true signatures of the officer of the Parent authorized to sign the Parent Performance Agreement.
(h) A favorable opinion of Jame▇ ▇. ▇▇▇▇▇▇▇, ▇▇., ▇▇q., Senior Vice President and General Counsel of the Parent, to be delivered at the express instruction of the Parent to, and for the benefit of, the Banks, the Documentation Agent and the Agent, substantially in the form of Exhibit E hereto and as to such other matters as any Bank through the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(bi) In A favorable opinion of Juli▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇q., Vice President and General Counsel-Finance of Enron Capital II, to be delivered at the good faith judgment express instruction of Enron Capital II to, and for the benefit of, the Banks, the Documentation Agent and the Agent, substantially in the form of Exhibit F hereto and as to such other matters as any Bank through the Agent may reasonably request.
(j) A favorable opinion of Vins▇▇ & ▇lki▇▇ ▇.▇.P., counsel for the Borrower, ECM II, Enron Capital II, the Enron Limited Partner and the Parent, to be delivered at the express instruction of the Borrower, ECM II, Enron Capital II, the Enron Limited Partner and the Parent to, and for the benefit of, the Banks, the Documentation Agent and the Agent, substantially in the form of Exhibit G hereto and as to such other matters as any Bank through the Agent may reasonably request.
(k) A favorable opinion of Brac▇▇▇▇▇ & ▇att▇▇▇▇▇, ▇.L.P., counsel for the Agent, to be delivered at the express instruction of the Agent to, and for the Lenders:
(i) There shall not have occurred or become known to benefit of, the Agent or any of Banks, 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 Documentation Agent and the Lenders prior Agent, substantially in the form of Exhibit H hereto.
(l) Copies of the ECM II Agreement and the Partnership Agreement, as in effect on the date hereof, certified as being true and correct copies by the Secretary or an Assistant Secretary of Enron Capital II.
(m) A certificate of an authorized financial officer of Enron Capital II in the form of Exhibit J hereto.
(n) Certificates of appropriate state officials as to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;existence and good standing of the Borrower, Enron Capital II, the Enron Limited Partner and ECM II.
(iio) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability A copy of the Borrower to fulfill its obligations under the Loan Documents to which it is Enron Limited Partner Agreement certified as being a party;
(iii) The Borrower true and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 transactions contemplated correct copy by the Loan DocumentsSecretary or an Assistant Secretary of Enron Capital IV.
Appears in 1 contract
Sources: Revolving Credit Agreement (Enron Capital & Trade Resources Corp)
Initial Conditions Precedent. The No Lender has any obligation to make its first Revolving Loan Advance, Swing Line Advance or Competitive Bid Advance and Issuing Bank has no obligation to issue the first Letter of Credit (whether or not otherwise agreed to by Issuing Bank) unless:
(a) Administrative Agent shall have received all of the Lenders following with copies for each Lender, at Administrative Agent's office in Midland, Texas:
(1) This Agreement, the Notes, those Security Instruments and Guaranties listed on Schedule 5 hereto, any other documents required in connection herewith, each duly executed and delivered and in form, substance and date satisfactory to effect or permit the occurrence Managing Agents.
(2) The following certificates:
(i) an "Omnibus Certificate" of the first Credit Event hereunder, whether as the making Secretary or an Assistant Secretary and of a Designated Officer, which shall contain the names and signatures of the officers of Borrower authorized to execute Loan Documents and which shall certify to the truth, correctness and completeness of the following exhibits attached thereto: (A) a copy of resolutions duly adopted by the Board of Directors of Borrower and in full force and effect at the time this Agreement is entered into, authorizing the execution of this Agreement and the other Loan Documents delivered or to be delivered in connection herewith and the consummation of the transactions contemplated herein and therein, (B) a copy of the charter documents of Borrower and all amendments thereto, certified by the appropriate official of Borrower's jurisdiction of organization, and (C) a copy of the bylaws or similar governing documents of Borrower (provided that, to the extent Borrower has previously provided Administrative Agent certified copies of the documents described in (B) and (C) above, such Omnibus Certificate may omit such documents, but shall include a statement that such documents have not been modified in any respect since the date last so provided to Administrative Agent, except as may be specifically noted in such Omnibus Certificate with appropriate attachments); and
(ii) a "Compliance Certificate" of a Designated Officer of Borrower, of even date with such Revolving Loan Advance, Swing Line Advance or Competitive Bid Advance or issuance of a Letter of Credit, is subject in which such officer certifies to the following satisfaction of the conditions precedent:set out in Section 3.2(a) and (b) and that all conditions hereunder have been satisfied.
(a3) A certificate (or certificates) of the due formation, valid existence and good standing of Borrower in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction.
(4) The Agent shall have received each favorable opinion of counsel for Borrower, Parent and the followingRestricted Subsidiaries, given upon their express instructions substantially in the form set forth as Exhibit H attached hereto.
(5) Documents similar to those specified in Section 3.1(a)(2)(i) and substance satisfactory 3.1(a)(3) with respect to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
Parent and (ii) Notes executed by each Restricted Subsidiary which is or will be party to a Security Instrument or Guaranty on the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;date hereof.
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v6) A certificate of good standing or certificate a Designated Officer of similar meaning with respect Borrower as to insurance concerning the material assets of Obligors. Lenders agree that Obligors' insurance coverage disclosed on Schedule 4 is acceptable at the date hereof.
(b) Except as disclosed to the Borrower issued as Lenders in the Disclosure Schedule or otherwise in writing prior to the execution hereof and not objected to by Required Lenders, there shall be no pending or threatened litigation, action or proceeding against Borrower, Parent, Petroleum or Mesa or any of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxationtheir respective Subsidiaries which, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified if adversely determined, could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(bc) In the good faith judgment of the Agent and the Lenders:
(i) There No event or condition shall not have occurred or become known to the Agent or any of the Lenders any eventsince December 31, condition1996, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could which is reasonably be expected to result in a Material Adverse Effect;.
(d) After giving effect to such Revolving Loan Advances, Competitive Bid Advances and Swing Line Advances and Letters of Credit, Borrower and Lenders shall be in compliance with the Margin Regulations.
(e) The mergers among Petroleum, Mesa, Mesa Operating and Parent (the "Mergers") shall have been consummated as contemplated by and pursuant to that certain Amended and Restated Agreement and Plan of Merger dated April 6, 1997 (the "Merger Agreement"), among such parties, and Administrative Agent shall have received (i) satisfactory evidence of the consummation of such Mergers and (ii) No litigationa certificate from a Designated Officer of Borrower certifying that the Mergers have been consummated.
(f) A certificate of a Designated Officer of Borrower certifying that (i) all representations and warranties made by any Obligor in this Agreement or any other Loan Document are true and correct as of the Effective Date and (ii) that all conditions precedent to the initial Advance contained in this Agreement or any other Loan Document have been satisfied as of the Effective Date.
(g) All requisite Governmental Authorities and third parties shall have approved or consented to the Mergers and all related transactions, including, without limitation, the issuance, closing and funding of this Agreement and the facilities thereunder, to the extent required. All applicable appeal periods shall have expired and there shall be, in the judgment of the Managing Agents, in their sole discretion, no governmental or judicial action, suitactual or threatened, investigation restraining, preventing or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially imposing burdensome conditions onon the Mergers and all related transactions, or otherwise materially including, without limitation, the issuance, closing and adversely affect funding of this Agreement and the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;facilities thereunder.
(iiih) The Borrower and its Subsidiaries Administrative Agent shall have received documentation of the release of all approvalsLiens associated with the Existing Mesa Facility and the Existing Petroleum Facility, consents in form and waiverssubstance acceptable to the Administrative Agent, and in its sole discretion.
(i) Managing Agents shall have made received copies of all financial statements, reports, notices and proxy statements sent by Parent to its stockholders and all SEC filings concerning the Mergers.
(j) No litigation or given all necessary filings and notices, as shall be required to consummate administrative proceeding or other legal or regulatory developments prohibiting or enjoining the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 consummation of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; andMergers shall exist.
(ivk) There Exclusive of the Mergers, no "Event of Default" (as defined in the Existing Petroleum Credit Facility) for Petroleum or "Event of Default" (as defined in the Existing Mesa Credit Facility) for Mesa shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably and be expected to materially and adversely affect the transactions contemplated by the Loan Documentscontinuing.
Appears in 1 contract
Sources: Credit Facility Agreement (Pioneer Natural Resources Co)
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, this Agreement is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, a Note payable to each Lender (if requested by such Lender) not party to the Prior Credit Agreement and a replacement Note payable to each Lender whose Commitment is being increased pursuant to this Agreement, in each case complying with the applicable provisions terms of Section 2.92.13.(a);
(iii) An opinion ratification by the Guarantors and Operating Lessees of counsel their obligations under the Loan Documents to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselwhich they are parties;
(iv) A copysuch amendments to the Security Documents as Administrative Agent may require;
(A) an opinion of ▇▇▇▇▇ Lovells US LLP, counsel to the Borrower and the other Loan Parties, and (B) to the extent required by Administrative Agent, an opinion of local counsel reasonably satisfactory to Administrative Agent, as special counsel to the Loan Parties, each addressed to the Administrative Agent and the Lenders and collectively covering the matters set forth in Exhibit H;
(vi) to the extent required by Administrative Agent, the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer state of organization or similar representative formation of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationPerson;
(vvii) A to the extent required by Administrative Agent, a certificate of good standing (or certificate of similar meaning meaning) with respect to the Borrower each Loan Party issued as of a recent date by the Secretary of State of the state of formation of the Borrower each such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) A to the extent required by Administrative Agent, a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party with respect to each of the officers of the Borrower such Person authorized to execute and deliver the Loan Documents to which the Borrower such Person is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viiix) Copies to the extent required by Administrative Agent, copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party of (iA) the by-laws of such Person, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity (or, in lieu of the foregoing, a certificate of such Secretary or Assistant Secretary (or other individual performing similar functions) that the applicable document or documents delivered pursuant to the Original Credit Agreement or Prior Credit Agreement have not been modified or amended and remain in full force and effect) and (iiB) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) The Fees a Compliance Certificate for the Parent Guarantor’s fiscal quarter ended June 30, 2011;
(xi) Intentionally Omitted;
(xii) to the extent required by Administrative Agent, title insurance endorsements to the title insurance policies previously issued to Administrative Agent.
(xiii) to the extent required by Administrative Agent, UCC, tax, judgment and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions indicating that there are no Liens of record with respect to the assets of each such Loan Party other than Permitted Liens;
(xiv) evidence that the Fees, if any, then due and payable under Section 3.6(c)3.5., together with all other fees, expenses and any other Fees 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, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after 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;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requirehave been paid; and
(xiixv) Such such other documents, agreements documents and instruments as the Agent on behalf of Administrative Agent, or any Lender through the Lenders Administrative Agent, may reasonably request.; and
(b) In the good faith judgment No Default or Event of the Agent and the Lenders:
(i) There Default shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) 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;
(iii) The Borrower and 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of 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 partyexist; and
(ivc) There shall not have occurred The representations and warranties made or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated deemed made by the Borrower and each other Loan DocumentsParty in this Agreement and in the other Loan Documents delivered pursuant to Section 6.1. shall be true and correct.
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 following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each Lender (or Designated Lender, if requested by such Lenderapplicable) and complying with the applicable provisions of Section 2.92.11., and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyAn opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, counsel to the Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, substantially in the form of Exhibit N-1, and opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, LLP, special Maryland and Pennsylvania counsel to the Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, substantially in the form of Exhibit N-2;
(v) The declaration of trust of the Borrower certified as of a recent date by the appropriate officer Department of Assessments and Taxation of the State of Maryland;
(vi) A good standing certificate with respect to the Borrower issued as of a recent date by the Department of Assessments and Taxation of the State of Maryland and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is organizedrequired to be so qualified;
(vii) A certificate of incumbency signed by the Secretary or Assistant Secretary of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party and the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation and a duly authorized officer Notices of Conversion and to request the issuance of Letters of Credit;
(viii) Copies, certified by the Secretary or similar representative Assistant Secretary of the Borrower, of all corporate (or comparable) action taken by the Borrower to be true authorize the execution, delivery and complete, performance of the corporate charter or other formation document of Loan Documents to which the Borrower as in effect on such date of certificationis a party;
(vix) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the State of formation of such Guarantor;
(x) A certificate of good standing or certificate of similar meaning with respect to the Borrower each Guarantor issued as of a recent date by the Secretary of State of the state State of formation of the Borrower each such Guarantor and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vixi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor with respect to each of the officers of the Borrower such Guarantor authorized to execute and deliver the Loan Documents to which the Borrower such Guarantor is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viixii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of the Borrower of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) A copy of (x) each of the documents, instruments and agreements evidencing any of the Indebtedness described on Schedule 6.1.(g) and (y) the Advisory Agreement, the Management Agreement and each other Material Contract, in each case certified as true, correct and complete by the chief executive officer or chief financial officer of the Borrower;
(xiv) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxv) A Compliance Certificate, dated Certificate calculated as of the Effective DateDecember 31, based on financial results as of June 30, 2021 and after 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 Date2000;
(xxvi) A letter from the agents Agent under the Existing Credit Agreement providing information regarding to the payment in full of effect that such agreement has terminated and all amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requirehave been paid; and
(xiixvii) Such other documents, agreements and instruments as the Administrative Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), 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;
(iii) The Borrower 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 default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract