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) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11. (a) and a replacement Swingline Note executed by the Borrower; (iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date; (iv) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement Date; (v) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect; (vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit; (vii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party; (viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent; (ix) evidence that the Fees then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; (x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date); (xi) [reserved]; (xii) a Disbursement Instruction Agreement effective as of the Agreement Date; (xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and (xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries. (b) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect; (c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; (d) The Parent, 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 (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and (e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations. (f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 4 contracts
Sources: Credit Agreement (DiamondRock Hospitality Co), Credit Agreement (DiamondRock Hospitality Co), Credit Agreement (DiamondRock Hospitality Co)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class (or replacement Notes, as the case may be) executed by the Borrower, payable to each applicable Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.12(a);
(iii) an opinion of outside counsel to the Guaranty executed by each of Borrower and the Parent other Loan Parties, addressed to the Administrative Agent and each Material Subsidiary existing the Lenders and covering such matters as of the Effective DateAdministrative Agent may request;
(iv) (A) copies of the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Person (or in the case of any Loan Party and (y) other than the Borrower, any other date acceptable to the Administrative Agent so long as such organizational documents are certified as of the Effective Date by the Secretary or Assistant Secretary (or other individual performing similar functions) of such the applicable Loan Party) or (B) a certification by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party as being a true, correct and complete copy thereof as of that such documents have not been amended or otherwise modified since the Revolving Credit Agreement Date;
(v) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse EffectPerson;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(vii) (A) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A1) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B2) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a partyparty or (B) with respect to the items in clause (A)(1) above, a certification by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party that such documents have not been amended or otherwise modified since the Revolving Credit Agreement Date;
(viii) a closing certificate substantially in form of Exhibit U, executed on behalf of the Borrower by an opinion authorized officer of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative AgentBorrower;
(ix) a Disbursement Instruction Agreement effective as of the Agreement Date;
(x) a pro forma Compliance Certificate prepared as of September 30, 2023;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Joint Lead Arrangers and any of the Lenders, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses ;
(ivi) through the Merger shall be consummated substantially concurrently with the Refinancing on the Effective Date in accordance in all material respects with the Merger Agreement and (viiiii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries all Existing Term Loans that are not also Material Subsidiaries.repaid or assumed as part of the Refinancing shall have been repaid in full;
(bc) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders by or on behalf of the Borrower prior to the Agreement Date in connection with the transactions contemplated by this Agreement that has had or could reasonably be expected to result in a Material Adverse Effect;
(cd) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which is reasonably likely to be adversely determined, and, if adversely determined, could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(de) The Parent, 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 as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which which, or the failure to make, give or receive which, would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(ef) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender at least 2 Business Days prior to the Agreement Date in order to comply with requirements of any applicable “know your customer” and Anti-Money Laundering Laws, including, including without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.Patriot Act; and
(fg) Each the Borrower and each other Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case case, at least five (5) Business Days prior to the Effective Date.
Appears in 2 contracts
Sources: Term Loan Agreement (Realty Income Corp), Term Loan Agreement (Realty Income Corp)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Revolving Note) and complying with the terms of Section 2.11.
(a2.10.(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) the Pledge Agreement executed by each Pledgor initially to be a party thereto;
(v) to the extent certificated, all certificates representing any shares of Equity Interests pledged pursuant to the Pledge Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer or agent of the Loan Party with rights in such Equity Interest
(vi) an opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, and opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit J;
(vii) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vviii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viix) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixi) an opinion of counsel to evidence that (A) the Loan Parties (other than any Accommodation Subsidiary that Borrower’s registration statement on Form S-11 filed on December 22, 2011 with the Securities and Exchange Commission, as amended, has become effective and no stop order suspending the effectiveness thereof is not a Material Subsidiary), addressed to the Administrative Agent in effect and the Lenders and covering no proceedings for such customary matters as may be required purpose are pending before or threatened by the Administrative AgentSecurities and Exchange Commission, (B) the initial public offering of common stock by the Borrower contemplated by such Form S-11 (the “Initial Public Offering”) has occurred and that the same has resulted in receipt by the Borrower of gross proceeds of not less than $100,000,000 and (C) the Borrower’s common stock has trading privileges on the New York Stock Exchange;
(ixxii) a Compliance Certificate calculated as of the Effective Date on a pro forma basis for the Borrower’s fiscal quarter ended December 31, 2011;
(xiii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiv) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxv) a Compliance Certificate calculated as of insurance certificates, or other evidence, providing that the Effective Date insurance coverage required under Section 7.5. (giving pro forma effect to the financing evidenced by this Agreement including, without limitation, both property and the use of the proceeds of the Loans to be funded on the Agreement Date)liability insurance) is in full force and effect;
(xixvi) [reserved]UCC, tax, litigation, and judgment lien search reports with respect to the Loan Parties in all necessary or appropriate jurisdictions indicating that there are no Liens of record on the Collateral other than Permitted Liens of the types described in clauses (a) and (h) of the definition thereof;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxvii) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No 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 (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, 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 (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender may request in order to comply with requirements the USA Patriot Act (Title III of any AntiPub. L. 107-Money Laundering Laws56 (signed into law October 26, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.2001)); and
(fv) Each 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 Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDocuments.
Appears in 2 contracts
Sources: Credit Agreement (Select Income REIT), Closing Agreement (Select Income REIT)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class and Term Notes (other than excluding any Lender that has requested that it not receive a NoteNotes) executed by the Borrower, payable to each applicable Lender and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.10.(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as owner of an Eligible Property (other than the Effective DateBorrower);
(iv) an opinion of Tones Vaisey, PLLC, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party the Borrower and the Parent certified (x) as of a recent date by the Secretary of State of the state of formation of such Person and of each other Loan Party certified as true, complete and (y) correct copies by the Secretary or Assistant Secretary (or other individual performing similar functions) of such each other Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices requests for Letters of ConversionCredit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Borrowing Base Certificate calculated as of counsel June 30, 2012 giving pro forma to the Loan Parties transactions contemplated herein, and demonstrating that after giving effect to all Loans made, and Letters of Credit issued on the Effective Date (together with all other than any Accommodation Subsidiary that is not a Material SubsidiaryLetter of Credit Liabilities, if any), addressed to the Administrative Agent and Borrower will be in compliance with the Lenders and covering such customary matters as may be required by the Administrative Agentlimitations set forth in Section 2.13.(b);
(ixx) a Compliance Certificate calculated on a pro forma basis for the Parent’s fiscal quarter ending June 30, 2012;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) one or more International Swaps and Derivatives Association master agreements executed by the Borrower each in favor of a Disbursement Instruction Agreement effective Lender as of the Agreement Date, including completed Schedules thereto and trade confirmations providing for a floating to fixed interest rate swaps on an aggregate notional amount of at least $80,000,000 in respect of the Term Loans and for a period of at least 3 years (giving effect to any forward starting interest rate swaps), together with evidence of the Borrower’s authority to enter into such agreements;
(xiii) evidence of repayment that all indebtedness, liabilities or obligations owing under the Existing Credit Agreements have been paid in full of (x) that certain Term Loan Agreement dated as of May 3full, 2016all Liens securing such indebtedness, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agentliabilities or obligations have been released, and the other parties thereto, as amended by that certain First Amendment to Term Loan all commitments under such Existing Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoAgreements have been terminated or expired; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No 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 (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The the Parent, the Borrower Borrower, the other Loan Parties, and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The the Parent, the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements the USA Patriot Act (Title III of any AntiPub. L. 107-Money Laundering Laws56 (signed into law October 26, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.2001)); and
(fv) Each 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 Party Documents. Without limiting the generality of the provisions of Section 12.5, for purposes of determining compliance with the conditions precedent set forth in this Section 6.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or Subsidiary thereof that qualifies as accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a “legal entity customer” under Lender unless the Beneficial Ownership Regulation Administrative Agent shall have delivered to the Administrative Agent, and any received notice from such Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the proposed Effective DateDate specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Broadstone Net Lease Inc), Credit Agreement (Broadstone Net Lease Inc)
Initial Conditions Precedent. The obligation of the Lenders Lender to effect or permit the occurrence of the first Credit Event Extension hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received each Lender’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, and of duly authorized officers of any other parties thereto, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative AgentLender:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary Guarantor existing as of the Effective Closing Date;
(iv) each of the certificate or Security Instruments executed by each Loan Party existing as of the Closing Date;
(v) favorable opinions of ▇▇▇▇▇▇▇ Long & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Lender, as to the matters set forth in Exhibit C and such other matters concerning the Loan Parties and the Loan Documents as the Lender may reasonably request;
(vi) the articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Loan Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and to request the issuance of Letters of Credit;
(viiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) The results of a recent UCC, tax, judgment and lien search in each of the jurisdictions to which UCC financing statements or other filings or recordations should be made to evidence or perfect security interests in Collateral being granted under the Security Instruments as of the Closing Date, and such search shall reveal no Liens of record with respect to any such Collateral other than Liens to be terminated prior to the Closing Date or other Liens Acceptable to the Lender;
(xi) Each document (including, without limitation, any UCC financing statement) required by the Security Instrument or under applicable Laws or reasonably deemed necessary or appropriate by the Lender to be filed, registered or recorded in order to create in favor of the Lender a perfected first-priority Lien on the Collateral described thereon, shall have been filed, registered or recorded or shall have been delivered to the Lender and be in proper form for filing, registration or recordation;
(xii) All certificates, if any, representing any shares of Pledged Equity Interests pledged pursuant to the Pledge Agreement, together with an opinion undated transfer power for each such certificate executed in blank by a duly authorized officer or agent of counsel to the Loan Party with rights in such Pledged Equity Interest;
(xiii) A certificate or certificates of insurance of the Loan Parties evidencing liability and casualty insurance meeting the requirements set forth in the Loan Documents and in form and substance reasonably acceptable to the Lender, including, without limitation, naming the Lender as additional insured and lenders loss payee;
(A) All agreements, documents and instruments evidencing, or executed in connection with, the Subordinated Indebtedness, (B) the Lender’s satisfaction with the terms thereof, (C) any Subordination Agreements with respect thereto;
(xv) Evidence satisfactory to the Lender that each of the Borrower and each Subsidiary shall have been released from all liabilities and obligations in respect of Indebtedness (other than any Accommodation Subsidiary that is not a Material Subsidiarythe Obligations and other than liabilities and obligations expressly permitted under Section 8.03), addressed including, without limitation, a pay-off letter, UCC termination statements and other releases duly executed by any holder of such Indebtedness to be released, each in form and substance satisfactory to the Administrative Agent Lender.
(xvi) a certificate from a Responsible Officer of the Borrower to the effect that (x) all representations and warranties of the Lenders Loan Parties contained in the Loan Documents are true, correct and covering such customary matters as may be required complete in all material respects and (y) immediately after giving effect to the transactions contemplated by the Administrative Agentthis Agreement, no Default shall exist;
(ix) evidence that the Fees then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxvii) a Compliance Certificate calculated as of the Effective Date March 31, 2008 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Closing Date), a duly completed Loan Notice and funds disbursement Instructions;
(xixviii) [reserved];
(xii) a Disbursement Instruction Agreement effective as certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under applicable Laws, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Agreement Date;
(xiii) evidence Loan Documents or any of repayment the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by force and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agenteffect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding this Agreement or any transaction being financed with the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoproceeds thereof shall be ongoing; and
(xivxix) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There Any fees required to be paid on or before the Closing Date shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;been paid.
(c) No litigationThe Borrower shall have paid all fees, actioncharges and disbursements of counsel to the Lender to the extent invoiced prior to or on the Closing Date, suitplus such additional amounts of such fees, investigation charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or other arbitral, administrative or judicial proceeding to be incurred by it through the closing proceedings (provided that such estimate shall be pending or threatened in writing which could reasonably be expected to (i) result in not thereafter preclude a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability final settling of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, accounts between the Borrower and its Subsidiaries shall have received all approvalsthe Lender), consents and waiverswhich fees, and shall have made but not any charges or given all necessary filings and notices as disbursements, shall be required limited to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations$50,000.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 2 contracts
Sources: Credit Agreement (TRX Inc/Ga), Credit Agreement (TRX Inc/Ga)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Revolving Note) and complying with the terms of Section 2.11.
(a2.10.(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) an opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, and an opinion of ▇▇▇▇ ▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse EffectEffect and each state in which a Collateral Property owned by such Loan Party is located;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated as of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not Effective Date on a Material Subsidiary)pro forma basis for the Borrower’s fiscal quarter ending March 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2017;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) [intentionally omitted];
(xii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, the Borrower Letter executed by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No 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 (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, 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 (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements the USA Patriot Act (Title III of any AntiPub. L. 107-Money Laundering Laws56 (signed into law October 26, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.2001)); and
(fv) Each 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 Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDocuments.
Appears in 2 contracts
Sources: Credit Agreement (Diversified Healthcare Trust), Credit Agreement (Diversified Healthcare Trust)
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 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) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.8;
(iii) the Facility Guaranty executed by each of the Parent and each Material Subsidiary existing as of other Person that the Borrower elects to make a Guarantor on the Effective Date;
(iv) an opinion of counsel to the certificate or Loan Parties, addressed to the Agent and the Lenders, in form and substance reasonably satisfactory to the Agent;
(v) the articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) Party, or, in the case of the Parent only, certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParent;
(vvi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party or its constituent partners or members authorized to execute and deliver the Loan Documents to which such Loan Party is a partyparty and, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Conversion, Continuation and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of CreditConversion;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a certificate from a Responsible Officer of counsel the Parent and the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects and (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed y) immediately after giving effect to the Administrative Agent and the Lenders and covering such customary matters as may be required transactions contemplated by the Administrative Agentthis Agreement, no Default or Event of Default shall exist;
(ixx) evidence that the Fees then due and payable under Section 3.5.3.6, together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(xxi) a Compliance Certificate calculated as of the Effective Date December 31, 2017 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Datehereunder);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective all documentation and other information about the Loan Parties as of shall have been reasonably requested by the Agreement Date;
(xiii) evidence of repayment in full of (x) Agent or any Lender that certain Term Loan Agreement dated as of May 3it shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, 2016, by and among the Borrowerincluding without limitation, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoUSA Patriot Act; and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and Parent or its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date since December 31, 2017 that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower 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 (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Parent, the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 2 contracts
Sources: Term Loan Agreement (Piedmont Office Realty Trust, Inc.), Term Loan Agreement (Piedmont Office Realty Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction 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 of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.112.10.
(a) and a replacement Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date;
(iv) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(viv) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viv) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viivi) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiivii) an An opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative AgentLenders;
(ixviii) evidence that the The Fees then due and payable under Section 3.53.6., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the LendersLenders on or prior to the Effective Date, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xix) a A Compliance Certificate calculated as of the Effective Date March 30, 2021 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Effective Date);
(xix) [reserved];
(xii) a A completed Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) 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 shall have been paid in full and all Liens, if any, securing such indebtedness, liabilities or other obligations have been released;
(xii) At least five (5) Business Days prior to the Agreement Date, all documentation and other information requested by the Administrative Agent or any Lender or required by regulatory authorities in order for the Administrative Agent and the Lenders to comply with requirements of any Anti-Money Laundering Laws, including the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) and any applicable “know your customer” rules and regulations;
(xiii) evidence of repayment A Beneficial Ownership Certification in full of relation to the Borrower (xor a certification that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations), in each case at least five (5) that certain Term Loan Business Days prior to the Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoDate; and
(xiv) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Administrative Agent:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, 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 (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 2 contracts
Sources: Credit Agreement (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 satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class and Bid Rate Notes executed by the Borrower, payable to each applicable Lender of such Class (including any Designated Lender, if applicable), other than any Lender that has requested that it not receive a Note) , and complying with the terms of Section 2.11.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Parent and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit O;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate calculated on a pro forma basis for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Borrower’s fiscal quarter ending September 30, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2020;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower Parent and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower Parent 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 (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A1) have a Material Adverse Effect, or (B2) restrain or restrain, enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders shall have received, at least five (5) Business Days prior to the Agreement Date, all documentation and other information requested by the Administrative Agent or any Lender or required by regulatory authorities in order for the Administrative Agent and the Lenders to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, including the PATRIOT Act and any applicable “know your customer” rules and regulations.;
(fv) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same, a Beneficial Ownership Certification in relation to it (or a certification that such Loan Party or such SubsidiaryBorrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations), in each case at least five (5) Business Days prior to the Effective Agreement Date; and
(vi) there shall not have occurred or exist any material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Regency Centers Lp), Credit Agreement (Regency Centers Lp)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is are subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class and Term Notes executed by the Borrower, payable to each applicable Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors, if any, initially to be a party thereto;
(iv) an opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, and an opinion of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse EffectEffect and each state in which a Collateral Property owned by such Loan Party is located;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated as of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not Effective Date on a Material Subsidiary)pro forma basis for the Borrower’s fiscal quarter ending December 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2017;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective copy of all Operating Agreements, all Ancillary Agreements, the Business Management Agreement, the Property Management Agreement, in each case certified as true, correct and complete by the chief operating officer or chief financial officer of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, 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 (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(e) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations., including without limitation, the Patriot Act; and
(f) Each 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 Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDocuments.
Appears in 2 contracts
Sources: Credit Agreement (Service Properties Trust), Credit Agreement (Service Properties Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Term Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than excluding any Lender that has requested that it not receive a Note) executed by the Borrower, payable to each applicable Lender and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.10.(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as owner of an Eligible Property (other than the Effective DateBorrower);
(iv) an opinion of Tones Vaisey, PLLC, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party the Borrower and the Parent certified (x) as of a recent date by the Secretary of State of the state of formation of such Person and of each other Loan Party certified as true, complete and (y) correct copies by the Secretary or Assistant Secretary (or other individual performing similar functions) of such each other Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower the Notice of Term Loan Borrowing and Notices of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Borrowing Base Certificate calculated as of counsel March 31, 2013 giving pro forma to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agenttransactions contemplated herein;
(ixx) a Compliance Certificate calculated on a pro forma basis for the Parent’s fiscal quarter ending March 31, 2013;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxii) a Compliance Certificate calculated as the Notice of Term Loan Borrowing from the Effective Date (giving pro forma effect Borrower requesting $50,000,000 of Loans indicating how the proceeds thereof are to be made available to the financing evidenced by this Agreement Borrower, and the use of the proceeds if any of the Loans initially are to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the BorrowerLIBOR Loans, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoInterest Period thereof; and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No 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 (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The the Parent, the Borrower Borrower, the other Loan Parties, and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The the Parent, the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements the USA Patriot Act (Title III of any AntiPub. L. 107-Money Laundering Laws56 (signed into law October 26, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.2001)); and
(fv) Each 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 Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDocuments.
Appears in 2 contracts
Sources: Term Loan Agreement (Broadstone Net Lease Inc), Term Loan Agreement (Broadstone Net Lease Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the satisfaction 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 of each Class executed by the BorrowerBorrowers, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.8;
(iii) the The Guaranty executed by each of the Parent and each Material Subsidiary Guarantor existing as of the Effective Date;
(iv) The Pledge Agreement executed by the certificate or Parties thereto;
(v) An opinion of counsel to the Loan Parties, addressed to the Agent and the Lenders, addressing the matters set forth in Exhibit F;
(vi) The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrowers and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the BorrowerBorrowers, authorized to execute and deliver on behalf the officers of the Borrower Representative then authorized to deliver Notices of Borrowing, Notices of Conversion, Continuation and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of CreditConversion;
(viiix) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence that the The Fees then due and payable under Section 3.53.6., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(xxi) a A Compliance Certificate calculated as of the Effective Date June 1, 2007 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Effective Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective A Borrowing Base Certificate dated as of the Agreement Effective Date;
(xiii) evidence Such due diligence (including lien searches and/or title reports) with respect to the Borrowing Base Assets Pool as the Agent on behalf of repayment the Lenders may reasonably request;
(xiv) all documentation, recordings, filings and other actions in full the judgment of (x) that certain Term Loan Agreement dated as the Agent required to collaterally assign the Collateral to the Agent for the benefit of May 3, 2016, by the Lenders and among to perfect the Borrower, Agent's first priority Lien therein for the Parent, benefit the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoLenders shall have been completed; and
(xivxv) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower Trust and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower Borrowers or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower Trust 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 (i1) any Applicable Law or (ii2) any agreement, document or instrument to which any Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the any Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Lexington Master 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 or continuation 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 Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the BorrowerBorrowers, payable to each Lender of (if requested by such Class (other than any Lender that has requested that it not receive a NoteLender) and complying with the terms applicable provisions of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.10;
(iii) the The Guaranty executed by each of the Parent and each Material Subsidiary Guarantor existing as of the Effective Date;
(iv) The Pledge Agreement executed by the certificate or Parties thereto;
(v) An opinion of counsel to the Loan Parties, addressed to the Agent and the Lenders, addressing the matters set forth in Exhibit F;
(vi) The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrowers and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the BorrowerBorrowers, authorized to execute and deliver on behalf the officers of the Borrower Representative then authorized to deliver Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, Conversion and to request the issuance of Letters of Credit;
(viiix) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence that the The Fees then due and payable under Section 3.5.3.6, together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(xxi) a A Compliance Certificate calculated as of the Effective Date December 31, 2010 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Effective Date);
(xi) [reserved];
(xii) a Disbursement Instruction A letter from each applicable agent under the Existing Credit Agreement effective as providing information regarding the payment in full of amounts outstanding thereunder and providing for the Agreement Datetreatment thereof;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement A Borrowing Base Certificate dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; andEffective Date;
(xiv) such Such due diligence (including lien searches and/or title reports) with respect to the Borrowing Base Assets Pool as the Agent on behalf of the Lenders may reasonably request;
(xv) all documentation, recordings, filings and other actions in the judgment of the Agent required to collaterally assign the Collateral to the Agent for the benefit of the Lenders and to perfect the Agent’s first priority Lien therein for the benefit the Lenders shall have been completed;
(xvi) the Borrower and each other Loan Party shall have provided all information requested by the Agent and each Lender in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001));
(xvii) Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower Trust and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower Borrowers or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower Trust 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 (i1) any Applicable Law or (ii2) any agreement, document or instrument to which any Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the any Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as 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 Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.112.10.
(a) , and a replacement the Swingline Note executed by the Borrower;
(iii) the The Guaranty executed by each Subsidiary that owns or leases a Collateral Property as of the Parent Agreement Date and each Material Subsidiary existing (other than any Excluded Subsidiary) as of the Effective Agreement Date;
(iv) An opinion or opinions of counsel to the certificate or Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, addressing the matters set forth in Exhibit H;
(v) The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of ConversionSwingline Borrowings, Notices of Continuation, Continuation and Notices of Swingline Borrowing, Conversion and to request the issuance of Letters of Credit;
(viiviii) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence that the The Fees then due and payable under Section 3.53.6., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidAgreement Date;
(x) a A Compliance Certificate calculated as of the Effective Date September 30, 2005 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Closing Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective A Borrowing Base Certificate calculated as of the Agreement Date;
(xiiixii) evidence of repayment A letter from the agent bank under the Existing Credit Agreement providing information regarding the payment in full of amounts outstanding under the Existing Credit Agreement and providing for the termination thereof and the release of all Liens securing any obligations owing thereunder;
(xxiii) that certain Term Loan Agreement dated All of the items required to be delivered under Sections 4.1. and 4.2. with respect to each Property identified on Schedule 4.1.;
(xiv) The results of a lien search in each of the jurisdictions in which UCC financing statements or other filings or recordations should be made to evidence or perfect security interests in Collateral (as defined in the Pledge Agreement), including without limitation the jurisdiction of May 3, 2016, by and among formation of the Borrower, such search results to reveal no Liens of record with respect to any of such Collateral;
(xv) The Pledge Agreement executed by the ParentBorrower;
(xvi) All certificates representing any shares of Equity Interests pledged pursuant to the Pledge Agreement, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended together with an undated stock power for each such certificate executed in blank by that certain First Amendment to Term Loan Credit Agreement dated as a duly authorized officer of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, together with an Acknowledgment and Consent, substantially in the Parentform of Schedule 2 to the Pledge Agreement, duly executed by each of the financial institutions from time NY Owners;
(xvii) UCC financing statements describing the Collateral (as defined in the Pledge Agreement) to time party thereto, Regions Bank, be filed in New York and such other jurisdictions as administrative agent, and necessary to perfect the other parties theretosecurity interest purported to be created by the Pledge Agreement; and
(xivxviii) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, 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 (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiii) The Borrower and each other Loan Party its Subsidiaries shall have provided received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the Administrative Agent and transactions contemplated hereby without the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements occurrence of any Anti-Money Laundering Lawsdefault under, including, without limitation, the PATRIOT Act and conflict with or violation of (1) any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.Applicable Law or
Appears in 1 contract
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 of this Agreement executed by each of the parties hereto;
(iib) Notes of each Class executed by the Borrower, payable to each applicable Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.6;
(iiic) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(ivd) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may request, addressed to the Administrative Agent and the Lenders;
(e) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vf) 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 within thirty (30) days of the date hereof, and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vig) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party Person authorized to execute and deliver the Loan Documents to which such Loan Party Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of CreditLoan Interest Rate Request Forms in the forms attached hereto as Exhibit C;
(viih) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiii) a Compliance Certificate and an opinion of counsel to Unencumbered Asset Value Certificate calculated on an estimated basis using financial information not yet finalized for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Borrower’s fiscal quarter ending December 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2011;
(ixj) evidence 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 Fees then due Agreement Date, and payable under Section 3.5., together with fully executed and completed Borrower Authorization Forms effective as of the Agreement Date;
(l) a complete listing of all other Subsidiaries which are Non-Guarantor Entities;
(m) intentionally omitted;
(n) intentionally omitted;
(o) all fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivp) such other documents, agreements agreements, and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, 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 (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: 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 satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class and Term Notes executed by the Borrower, payable to each requesting Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) the Pledge Agreement executed by each of the Pledgors initially to be a party thereto;
(v) an opinion of ▇▇▇▇▇ Lovells US LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters reasonably requested by the Administrative Agent;
(vi) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence that the Fees then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving on a pro forma effect to basis for the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date)Parent’s fiscal quarter ended June 30, 2016;
(xi) [reserved]Each document (including, without limitation, any UCC financing statement) and all actions required by any Loan Document or under Applicable Law or reasonably deemed necessary or appropriate by the Administrative Agent to be entered into, filed, registered or recorded or taken, in order to create in favor of the Administrative Agent, for the benefit of the Lender Parties, a perfected first-priority Lien in the Collateral as of the Effective Date, shall have been entered into, filed, registered, recorded, taken or shall have been delivered to the Administrative Agent and be in proper form for filing, registration or recordation, as appropriate;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term all indebtedness, liabilities or obligations owing by the Loan Parties under the Master Loan and Security Agreement dated as of May 3March 7, 20162013, by among ▇.▇. ▇▇▇▇▇▇ Chase Bank, N.A. and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association▇▇▇▇▇ Fargo, as administrative agentlenders, and the other parties theretosubsidiaries of the Parent identified therein, as amended by borrowers, as amended, supplemented or otherwise modified, shall have been paid in full and all Liens securing such indebtedness, liabilities or other obligations have been released;
(xiv) UCC, tax and lien search reports with respect to each Pledgor in all reasonably necessary or appropriate jurisdictions indicating that certain First Amendment to Term Loan Credit Agreement dated as there are no Liens of April 26, 2017 record on the Collateral other than Permitted Liens of the types described in clauses (a) and (yf) of the definition of such term (other than Liens to be released simultaneously on the Effective Date as contemplated by clause (xiii) above);
(xv) the Fee Letter;
(xvi) evidence that certain Term Loan Agreement dated as the Fees, if any, then due and payable under Section 3.5., together with, to the extent a reasonably detailed invoice thereof has been presented to the Borrower prior to the Effective Date, all other reasonable and documented out-of-pocket fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of April 26the Lenders, 2017, by and among the Borrowerincluding without limitation, the Parentreasonable and documented out-of-pocket fees and expenses of counsel to the Administrative Agent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretohave been paid; and
(xivxvii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in have a Material Adverse Effect;
(c) No 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 (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or Borrower, any other Loan Party or the Parent to fulfill its obligations under the Loan Documents to which it is a party;
(d) The the Parent, the Borrower Borrower, the other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each requesting Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.112.12.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Dateintentionally omitted;
(iv) intentionally omitted;
(v) an opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ US LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters reasonably requested by the Administrative Agent;
(vi) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence that the Fees then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving on a pro forma effect to basis for the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date)Parent’s fiscal year ended December 31, 2020;
(xi) [reserved]intentionally omitted;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) intentionally omitted;
(xiv) intentionally omitted;
(xv) the Fee Letter;
(xvi) evidence that the Fees, if any, then due and payable under Section 3.5., together with, to the extent a reasonably detailed invoice thereof has been presented to the Borrower prior to the Effective Date, all other reasonable and documented out-of-pocket fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of repayment in full of (x) that certain Term Loan Agreement dated as of May 3the Lenders, 2016, by and among the Borrowerincluding without limitation, the Parentreasonable and documented out-of-pocket fees and expenses of counsel to the Administrative Agent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretohave been paid; and
(xivxvii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There since December 31, 2020, there shall not have occurred any material adverse condition or become known to material adverse change in or affecting, or the Administrative Agent occurrence of any circumstance or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date condition that has had or could reasonably be expected to result in a material adverse change in, or have a Material Adverse EffectEffect on, the business, assets, liabilities, condition (financial or otherwise), or operations of the Parent, the Borrower and their Subsidiaries;
(c) No 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 (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or Borrower, any other Loan Party or the Parent to fulfill its obligations under the Loan Documents to which it is a party;
(d) The the Parent, the Borrower Borrower, the other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(ei) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations.
, including without limitation, the Patriot Act, and (fii) Each Loan Party or Subsidiary thereof at least five (5) Business Days prior to the Agreement Date, the Borrower shall deliver, on behalf of itself and any Guarantor that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the sameRegulation, a Beneficial Ownership Certification in relation to itself and to such Loan Party or Guarantor, to each Lender that so requests such Subsidiary, in each case at least five (5) Business Days prior to the Effective Datea Beneficial Ownership Certification.
Appears in 1 contract
Sources: Amendment No. 1 to Amended and Restated Credit Agreement (American Homes 4 Rent, L.P.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class and Term Notes executed by the Borrower, payable to each requesting Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) intentionally omitted;
(v) an opinion of ▇▇▇▇▇ Lovells US LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters reasonably requested by the Administrative Agent;
(vi) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence that the Fees then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving on a pro forma effect to basis for the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date)Parent’s fiscal quarter ended June 30, 2016;
(xi) [reserved]intentionally omitted;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term all indebtedness, liabilities or obligations owing by the Loan Parties under the Master Loan and Security Agreement dated as of May 3March 7, 20162013, by among ▇.▇. ▇▇▇▇▇▇ Chase - 68 - Bank, N.A. and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association▇▇▇▇▇ Fargo, as administrative agentlenders, and the other parties theretosubsidiaries of the Parent identified therein, as amended by borrowers, as amended, supplemented or otherwise modified, shall have been paid in full and all Liens securing such indebtedness, liabilities or other obligations have been released;
(xiv) intentionally omitted;
(xv) the Fee Letter;
(xvi) evidence that certain First Amendment the Fees, if any, then due and payable under Section 3.5., together with, to Term Loan Credit Agreement dated as the extent a reasonably detailed invoice thereof has been presented to the Borrower prior to the Effective Date, all other reasonable and documented out-of-pocket fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of April 26the Lenders, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrowerincluding without limitation, the Parentreasonable and documented out-of-pocket fees and expenses of counsel to the Administrative Agent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretohave been paid; and
(xivxvii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in have a Material Adverse Effect;
(c) No 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 (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or Borrower, any other Loan Party or the Parent to fulfill its obligations under the Loan Documents to which it is a party;
(d) The the Parent, the Borrower Borrower, the other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Revolving Note) and complying with the terms of Section 2.11.
(a2.10.(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) an opinion of S▇▇▇▇▇▇▇ & Worcester LLP, and an opinion of S▇▇▇ ▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse EffectEffect and each state in which a Collateral Property owned by such Loan Party is located;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated as of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not Effective Date on a Material Subsidiary)pro forma basis for the Borrower’s fiscal quarter ending March 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2017;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) [intentionally omitted];
(xii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, the Borrower Letter executed by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No 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 (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, 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 (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements the USA Patriot Act (Title III of any AntiPub. L. 107-Money Laundering Laws56 (signed into law October 26, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.2001)); and
(fv) Each 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 Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDocuments.
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 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 of each Class executed by the BorrowerBorrowers, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.10;
(iii) the The Guaranty executed by each of the Parent and each Material Subsidiary Guarantor existing as of the Effective Date;
(iv) The Pledge Agreement executed by the certificate or Parties thereto;
(v) An opinion of counsel to the Loan Parties, addressed to the Agent and the Lenders, addressing the matters set forth in Exhibit F;
(vi) The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrowers and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the BorrowerBorrowers, authorized to execute and deliver on behalf the officers of the Borrower Representative then authorized to deliver Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, Conversion and to request the issuance of Letters of Credit;
(viiix) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence that the The Fees then due and payable under Section 3.5.3.6, together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(xxi) a A Compliance Certificate calculated as of the Effective Date , 2009 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Effective Date);
(xi) [reserved];
(xii) a Disbursement Instruction A letter from each applicable agent under the Existing Credit Agreement effective as providing information regarding the payment in full of amounts outstanding thereunder and providing for the Agreement Datetreatment thereof;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement A Borrowing Base Certificate dated as of May 3the Effective Date;
(xiv) Such due diligence (including lien searches and/or title reports) with respect to the Borrowing Base Assets Pool as the Agent on behalf of the Lenders may reasonably request;
(xv) all documentation, 2016recordings, by filings and among other actions in the Borrower, judgment of the Parent, Agent required to collaterally assign the financial institutions from time Collateral to time party thereto, KeyBank National Association, as administrative agent, the Agent for the benefit of the Lenders and to perfect the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among Agent’s first priority Lien therein for the Borrower, benefit the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoLenders shall have been completed; and
(xivxvi) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower Trust and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower Borrowers or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower Trust 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 (i1) any Applicable Law or (ii2) any agreement, document or instrument to which any Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the any Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each applicable Lender of such Class (other than but excluding any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.11.
(a2.12(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date[intentionally omitted];
(iv) [intentionally omitted];
(v) one or more opinions of counsel to the Borrower and such other Loan Parties as the Administrative Agent may request, addressed to the Administrative Agent and the Lenders;
(vi) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) 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 incorporation or formation of each such Loan Party Party, as applicable, and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, Borrowing and to request issuance of requests for Letters of Credit;
(viiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) an opinion a Borrowing Base Certificate calculated as of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)November 30, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2023;
(ixxi) a certificate from a Responsible Officer of the Borrower certifying that after giving pro forma effect to the transactions contemplated by this Agreement on the Effective Date that the Borrower will be Solvent;
(xii) a Compliance Certificate calculated on a proforma basis for the Borrower’s fiscal quarter ending September 30, 2023 (which calculations may be made using unaudited financial statements as of such date);
(xiii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiv) [intentionally omitted];
(xv) the Fee Letter;
(xvi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable at or prior to the Effective Date to the Administrative Agent, the Lead Arrangers Arrangers, and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxvii) a Compliance Certificate calculated as [intentionally omitted]
(xviii) UCC, tax, judgment and lien search reports with respect to the Borrower, and each other Loan Party in all necessary or appropriate jurisdictions;
(xix) [intentionally omitted];
(xx) [intentionally omitted];
(A) copies of satisfactory audited consolidated financial statements for the Borrower and its Subsidiaries for the three fiscal years most recently ended for which financial statements are available and interim unaudited financial statements for each quarterly period ended since the last audited financial statements for which financial statements are available, (B) pro forma consolidated financial statements for the Borrower and its Subsidiaries for the four-quarter period most recently ended prior to the Effective Date (for which financial statements are available giving pro forma effect to the financing evidenced by this Agreement transactions occurring on the Effective Date and the use a pro forma balance sheet of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective Borrower and its Subsidiaries as of the Agreement Date;
Effective Date giving pro forma effect to the transactions occurring on the Effective Date and (xiiiC) evidence projections prepared by management of repayment balance sheets, income statements and cash flow statements of the Borrower and its Subsidiaries, which will be quarterly for the first year after the Effective Date and annually thereafter through the Maturity Date (and which will not be inconsistent, in full any material respect, with information provided to the Administrative Agent prior to the delivery of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, ’s engagement letter with the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoAdministrative Agent); and
(xivxxii) Beneficial Ownership Certifications from the Borrower and such other documents, agreements and instruments Persons as the Administrative AgentAgent and Lenders shall reasonably require, or so long as any Lender through request for such Beneficial Ownership Certification is delivered in writing to the Administrative Agent, may reasonably request. The provisions of clauses Borrower at least five (iv5) through (viii) of Business Days prior to the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material SubsidiariesEffective Date.
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsDecember 31, budgets2022, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No [intentionally omitted];
(d) [intentionally omitted];
(e) 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 (iA) result in a Material Adverse Effect or (iiB) 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;
(df) The Parentthe Borrower, the Borrower other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eg) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information reasonably requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case writing at least five (5) Business Days prior to the Effective DateDate by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act;
(h) [intentionally omitted];
(i) [intentionally omitted]; and
(j) Parent shall have closed the IPO.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a any Note) and complying with the terms of Section 2.11.
(a) and a replacement the Swingline Note Notes executed by the Borrower;
(iii) an opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, and an opinion of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Guaranty executed by each of Borrower and the Parent other Loan Parties, addressed to the Administrative Agent and each Material Subsidiary existing the Lenders and covering such matters as of the Effective DateAdministrative Agent may reasonably request;
(iv) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(v) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Revolving Borrowing, Notices of Conversion, Notices of ContinuationTerm Loan Borrowing, Notices of Swingline Borrowing, and to request issuance of requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(vii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion a Compliance Certificate calculated as of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not Effective Date on a Material Subsidiary)pro forma basis for the Borrower’s fiscal quarter ended September 30, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2018;
(ix) a Disbursement Instruction Agreement effective as of the Agreement Date;
(x) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved]if required by the Administrative Agent, insurance certificates, or other evidence, providing that the insurance coverage required under Section 7.5. (including, without limitation, both property and liability insurance) is in full force and effect;
(xii) each Loan Party or Subsidiary thereof that qualifies as a Disbursement Instruction Agreement effective as “legal entity customer” under the Beneficial Ownership Regulation shall, collectively, have delivered to the Administrative Agent, and any Lender requesting the same, one Beneficial Ownership Certification in relation to each such Loan Party or such Subsidiary, in each case, at least five (5) Business Days prior to the date of the Agreement Date;closing; and
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, 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 (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(e) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Patriot Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party on or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered prior to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five date which is three (53) Business Days prior to the Effective Date; and
(f) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Government Properties Income Trust)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Lenders to effect or permit advance the occurrence of Loans on the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of CreditEffective Date, 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 heretohereto (which, subject to Section 12.14, may include any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page);
(ii) Term Notes of each Class (except for any Lender who has requested not to receive a promissory note), executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower;
(iii) the Facility Guaranty executed by each of the Parent and each Material Subsidiary existing as of other Person that the Borrower elects to make a Guarantor on the Effective Date;
(iv) an opinion of counsel to the certificate or Loan Parties, addressed to the Agent and the Lenders in form and substance reasonably satisfactory to the Agent;
(v) the articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) Party, or, in the case of the Parent only, certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParent;
(vvi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party or its constituent partners or members authorized to execute and deliver the Loan Documents to which such Loan Party is a partyparty and, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and then authorized to request issuance of Letters of Creditdeliver Loan Notices;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a certificate from a Responsible Officer of counsel the Parent and the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects and (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed y) immediately after giving effect to the Administrative Agent and the Lenders and covering such customary matters as may be required transactions contemplated by the Administrative Agentthis Agreement, no Default or Event of Default shall exist;
(ixx) evidence that the Fees then due and payable under Section 3.5., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(xxi) a Compliance Certificate calculated as of the Effective Date September 30, 2022 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Effective Date);
(xiA) [reserved];
(xii) a Disbursement Instruction Agreement effective all documentation and other information about the Loan Parties as of shall have been reasonably requested by the Agreement Date;
(xiii) evidence of repayment in full of (x) Agent or any Lender that certain Term Loan Agreement dated as of May 3it shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, 2016including, by and among the Borrowerwithout limitation, the ParentPatriot Act and (B) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Effective Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the financial institutions from time condition set forth in this clause (B) shall be deemed to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretobe satisfied); and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and Parent or its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date since December 31, 2021 that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower 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 (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Parent, the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(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
(ec) The representations and warranties made or deemed made by the Parent, the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall have provided to be true and correct in all material respects (or, in the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements case of any Anti-Money Laundering Lawssuch representation or warranty already qualified by materiality, including, without limitation, in all respects) on and as of the PATRIOT Act and any applicable “know your customer” rules and regulationsdate of the making of such Loan.
(fd) Each No Default or Event of Default shall exist, or would result from such proposed Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under from the Beneficial Ownership Regulation shall have delivered to application of the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Dateproceeds thereof.
Appears in 1 contract
Sources: Term Loan Agreement (Piedmont Office Realty Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each applicable Lender of such Class (other than but excluding any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.11.
(a2.12(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date[intentionally omitted];
(iv) [intentionally omitted];
(v) one or more opinions of counsel to the Borrower and such other Loan Parties as the Administrative Agent may request, addressed to the Administrative Agent and the Lenders;
(vi) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) 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 incorporation or formation of each such Loan Party Party, as applicable, and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, Borrowing and to request issuance of requests for Letters of Credit;
(viiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) an opinion a Borrowing Base Certificate calculated as of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)November 30, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2023;
(ixxi) a certificate from a Responsible Officer of the Borrower certifying that after giving pro forma effect to the transactions contemplated by this Agreement on the Effective Date that the Borrower will be Solvent;
(xii) a Compliance Certificate calculated on a proforma basis for the Borrower’s fiscal quarter ending September 30, 2023 (which calculations may be made using unaudited financial statements as of such date);
(xiii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiv) [intentionally omitted];
(xv) the Fee Letter;
(xvi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable at or prior to the Effective Date to the Administrative Agent, the Lead Arrangers Arrangers, and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxvii) a Compliance Certificate calculated as [intentionally omitted]
(xviii) UCC, tax, judgment and lien search reports with respect to the Borrower, and each other Loan Party in all necessary or appropriate jurisdictions;
(xix) [intentionally omitted];
(xx) [intentionally omitted];
(xxi) (A) copies of satisfactory audited consolidated financial statements for the Borrower and its Subsidiaries for the three fiscal years most recently ended for which financial statements are available and interim unaudited financial statements for each quarterly period ended since the last audited financial statements for which financial statements are available, (B) pro forma consolidated financial statements for the Borrower and its Subsidiaries for the four-quarter period most recently ended prior to the Effective Date (for which financial statements are available giving pro forma effect to the financing evidenced by this Agreement transactions occurring on the Effective Date and the use a pro forma balance sheet of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective Borrower and its Subsidiaries as of the Agreement Date;
Effective Date giving pro forma effect to the transactions occurring on the Effective Date and (xiiiC) evidence projections prepared by management of repayment balance sheets, income statements and cash flow statements of the Borrower and its Subsidiaries, which will be quarterly for the first year after the Effective Date and annually thereafter through the Maturity Date (and which will not be inconsistent, in full any material respect, with information provided to the Administrative Agent prior to the delivery of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, ’s engagement letter with the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoAdministrative Agent); and
(xivxxii) Beneficial Ownership Certifications from the Borrower and such other documents, agreements and instruments Persons as the Administrative AgentAgent and Lenders shall reasonably require, or so long as any Lender through request for such Beneficial Ownership Certification is delivered in writing to the Administrative Agent, may reasonably request. The provisions of clauses Borrower at least five (iv5) through (viii) of Business Days prior to the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material SubsidiariesEffective Date.
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsDecember 31, budgets2022, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No [intentionally omitted];
(d) [intentionally omitted];
(e) 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 (iA) result in a Material Adverse Effect or (iiB) 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;
(df) The Parentthe Borrower, the Borrower other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eg) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information reasonably requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case writing at least five (5) Business Days prior to the Effective DateDate by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act;
(h) [intentionally omitted];
(i) [intentionally omitted]; and
(j) Parent shall have closed the IPO.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent::
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent::
(i) counterparts of this Agreement executed by each of the parties hereto;;
(ii) Notes (or replacement Notes, as the case may be) of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms Note of Section 2.11.such
(a) and a replacement Swingline Note executed by the Borrower;;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Dateother Guarantors initially to be a party thereto;
(iv) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(ivv) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement Date;Party;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of Credit;Continuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;;
(ix) a Compliance Certificate calculated on a pro forma basis for the previous four calendar quarters ending on June 30, 2018;
(x) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) [Reserved];
(xii) copies of all Material Contracts in existence on the Agreement Date and either entered into or amended in any material respect after April 2, 2015;
(xiii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) certificates of insurance evidencing the insurance then in effect with respect to the Properties and otherwise in compliance with Section 8.5.;
(xv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;materially adverse effect on the business, assets, liabilities, condition (financial or otherwise), results of operations or business prospects of the Parent, the Borrower and the Subsidiaries taken as a whole;
(c) No 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 (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;;
(d) The the Parent, the Borrower Borrower, the other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making ;
(e) there shall not have occurred or giving exist any other material disruption of which would not financial or capital markets that could reasonably be likely expected to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under transactions contemplated by the Loan Documents to which it is a partyDocuments; and
(ef) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information reasonably requested by the Administrative Agent and each Lender in order to comply with requirements of any applicable “know your customer” and Anti-Money Laundering Laws, including, including without limitation, the PATRIOT Act Patriot Act; and any applicable “know your customer” rules and regulations.
(fg) Each each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall shall, collectively, have delivered to the Administrative Agent, and any Lender requesting the same, a one Beneficial Ownership Certification in relation to each such Loan Party or such Subsidiary, in each case case, at least five (5) Business Days prior to the Effective Date..
Appears in 1 contract
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, this Agreement is subject to the satisfaction or waiver of the following conditions precedent:precedent (the date of the satisfaction or waiver of the conditions set forth in this Section 6.1, the “Effective Date”):
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) to the extent requested by each Lender, Revolving Notes of each Class and Terms Notes executed by the Borrower, payable to each applicable Lender of such Class (other than but excluding any Lender that has requested that it not to receive a NoteNotes) and complying with the terms of Section 2.11.
(a2.12(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date▇▇▇▇▇▇ REIT;
(iv) an opinion of (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters reasonably required by Administrative Agent and (B) ▇▇▇▇▇▇▇ LLP, Maryland counsel to the Borrower and ▇▇▇▇▇▇ REIT, addressed to the Administrative Agent and the Lenders and covering the matters reasonably required by the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party issued within thirty (30) days of the date hereof and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) a Compliance Certificate calculated on a pro forma basis (taking into account the Unencumbered Pool Properties as of the Agreement Date) for the Borrower’s fiscal quarter ending December 31, 2014;
(x) a Disbursement Instruction Agreement effective as of the Effective Date;
(xi) the substantially concurrent (pursuant to an opinion escrow arrangement reasonably satisfactory to Administrative Agent) closing of counsel “The Redwood Portfolio” acquisition by Borrower and ▇▇▇▇▇▇ REIT pursuant to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Asset Purchase Agreement among the sellers named therein, addressed the ▇▇▇▇▇▇ REIT, and Borrower delivered to the Administrative Agent and certain other initial lender parties on December 6, 2014, at 4:45 pm Pacific Time (the Lenders and covering such customary matters as may be required by “Acquisition”);
(xii) copies of all Material Contracts in existence on the Agreement Date not previously delivered to Administrative Agent;
(ixxiii) evidence that the Fees then due and payable under Section 3.5., together with Fee Letter;
(xiv) all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the LendersLenders for which an invoice has been provided at least three (3) Business Days prior to the date hereof, including including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxv) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement extent not previously delivered to Administrative Agent, insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 (including, without limitation, both property and the use of the proceeds of the Loans to be funded on the Agreement Date)liability insurance) is in full force and effect;
(xixvi) [reserved]UCC, tax, judgment and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions indicating that there are no liens of record other than Permitted Liens;
(xiixvii) a Disbursement Instruction Agreement effective as complete listing of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoall Subsidiaries which are not Guarantors; and
(xivxviii) such other documentsevidence that all accrued and unpaid interest and fees owing by the Loan Parties under the Existing Credit Facilities have been paid, agreements and instruments as in full, for which an invoice has been provided at least three (3) Business Days prior to the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiariesdate hereof.
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsDecember 31, budgets2014, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No 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 (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, 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 (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Antiapplicable “know your customer” and anti-Money Laundering Lawsmoney laundering rules and regulations, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.USA Patriot Act; and
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of CreditLoan, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Term Notes of each Class executed by the Borrower, payable to each applicable Lender of such Class (other than excluding any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.8.(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) an opinion of B▇▇▇▇ ▇▇▇▇ LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and acceptable to the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party (with respect to Borrower and (y) by the Secretary or Assistant Secretary (or Trust Guarantor certified within the prior 75 days, and for all other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof Parties certified as of a date acceptable to the Agreement DateAdministrative Agent);
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date within the prior 75 days by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date within the prior 75 days by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending September 30, 2014, taking into account the amount of counsel the disbursement to be made on the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent Effective Date and the Lenders and covering such customary matters as may be required by outstanding balance under the Administrative AgentExisting Credit Agreement;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) the Fee Letter;
(xii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, pursuant to the terms hereof, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) 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;
(dc) The Parentthe Borrower, the Borrower other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, required as of the Effective Date, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby as of the Effective Date without the occurrence of any material default under, conflict with or violation of (iA) any Applicable Law Laws or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(ed) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Dividend Capital Diversified Property Fund Inc.)
Initial Conditions Precedent. The closing and effectiveness of this Agreement and the obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the satisfaction or waiver of the following conditions precedent:precedent (as confirmed to the Lenders by Administrative Agent):
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.10.(a);
(iii) the a Guaranty executed by each of the Guarantors initially to be a party thereto, and the Parent and each Material Subsidiary existing as of Guaranty executed by the Effective DateParent ;
(iv) an opinion of counsel of the Parent and the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders in form and substance acceptable to Administrative Agent;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party and the Parent certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) Person or by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DatePerson;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party and the Parent issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party Person is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party and the Parent with respect to each of the officers of such Loan Party Person authorized to execute and deliver the Loan Documents to which such Loan Party Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party and the Parent of (A) the by-laws of such Loan PartyPerson, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Borrowing Base Certificate calculated as of counsel to June 30, 2009
(x) a Compliance Certificate calculated on a pro forma basis for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Borrower's fiscal quarter ending June 30, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2009;
(ixxi) with respect to each Property identified on Schedule 4.1., each of the items referred to in Section 6.3. required to be delivered in connection with any Borrowing Base Property;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) UCC, tax, judgment and lien search reports with respect to the Borrower (or Subsidiary if any Borrowing Base Property is owned by a Subsidiary) and each Borrowing Base Property in all necessary or appropriate jurisdictions indicating that there are no Liens of record on such Property other than Permitted Liens;
(xiv) copies of all Material Contracts with respect to the Borrowing Base Properties and Specified Derivatives Contracts in existence on the Agreement Date;
(xv) copies of the form of Tenant Lease to be used for each Borrowing Base Property from the Effective Date until the Maturity Date and each Tenant Lease entered into as of the Agreement Date with respect to such Borrowing Base Property;
(xvi) the Fee Letter;
(xvii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxviii) insurance certificates, or other evidence, providing that the insurance coverage required under the Security Documents (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 non-payment 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 Compliance Certificate calculated as reduction in coverage), together with appropriate evidence that the Administrative Agent, for its benefit and the benefit of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement Lenders and the use of the proceeds of the Loans to be funded Specified Derivatives Providers is named as a lender's loss payee and additional insured, as appropriate, on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) all insurance policies that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time any Loan Party or any other Subsidiary actually maintains with respect to time party thereto, KeyBank National Association, as administrative agent, any Borrowing Base Property and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoimprovements on such Borrowing Base Property; and
(xivxix) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party or the Parent to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The the Parent, 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 as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which which, or the failure to make, give or receive which, would not reasonably be likely to (A1) have a Material Adverse Effect, or (B2) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or Borrower, any other Loan Party or the Parent to fulfill its is obligations under the Loan Documents to which it is a partyparty ; and
(eiv) The Borrower there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Term Loans 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 Counterparts of this Agreement executed by each of the parties hereto;
(ii) Term Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.112.8.
(a) and a replacement Swingline Note executed by the Borrower;
(iii) the The Guaranty executed by each of the Parent and each Material Subsidiary other Guarantor existing as of the Effective Date;
(iv) The Pledge Agreement executed by the certificate or Borrower and the Pledgors;
(v) An opinion of counsel to the Loan Parties, addressed to the Agent and, the Lenders, addressing the matters set forth in Exhibit D;
(vi) The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified (x) as of a recent date by the Secretary of State (or comparable official) of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State (or comparable official) of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (or comparable official and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Conversion, Continuation and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of CreditConversion;
(viiix) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) an opinion The results of counsel a recent UCC, tax, judgment and 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 being granted under the Pledge Agreement as of the Effective Date, and such search shall reveal no Liens of record with respect to any of such Collateral other than Liens to be terminated prior to the Loan Parties (Effective Date or other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed Liens acceptable to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ixxi) Each document (including, without limitation, any UCC financing statement) required by the Pledge Agreement or under Applicable Law or reasonably deemed necessary or appropriate by the Agent to be filed, registered or recorded in order to create in favor of the Agent, for the benefit of the Lenders, a perfected first-priority Lien on the Collateral described therein, shall have been filed, registered or recorded or shall have been delivered to the Agent and be in proper form for filing, registration or recordation;
(xii) All certificates, if any, representing any shares of Equity Interests pledged pursuant to the Pledge Agreement, together with an undated transfer power for each such certificate executed in blank by a duly authorized officer or agent of the Loan Party with rights in such Equity Interest, together with an Acknowledgment and Consent, substantially in the form of Schedule 2 to the Pledge Agreement, duly executed by the issuer of such Equity Interest;
(xiii) Evidence that title to the Bridge Loan Properties is owned by the Property Owners, which evidence may include copies of owner’s title policies of insurance (or commitments to issue the same) issued as of a recent date showing fee simple title to the Bridge Loan Properties being vested in the applicable Property Owners;
(xiv) A certificate of the chief executive officer, chief financial officer or other senior officer of the Parent certifying that all conditions precedent in the Purchase Agreement to the closing of the Acquisition (other than the payment of the Purchase Price (as defined in the Purchase Agreement)) have been satisfied;
(xv) The Fees then due and payable under Section 3.53.6., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(xxvi) a A Compliance Certificate calculated as of the Effective Date June 30, 2007 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Effective Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxvii) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its the other Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower 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 (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: Credit Agreement (U-Store-It 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 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 of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.112.8.
(a) and a replacement Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary Guarantor existing as of the Effective Date;
(iv) an opinion of counsel to the certificate or Loan Parties, addressed to the Agent and the Lenders, addressing the matters set forth in Exhibit G, which shall include, without limitation, an opinion that the Obligations constitute “Senior Debt” under, and as defined in, the Subordinated Indenture;
(v) the articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department 33 of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Conversion, Continuation and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of CreditConversion;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a certificate from a Responsible Officer of counsel the Borrower to the effect that (a) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects, (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed b) immediately after giving effect to the Administrative Agent transactions contemplated by this Agreement, no Default or Event of Default shall exist, (c) as of the Effective Date, the Loan Parties, taken as a whole, are Solvent and (d) each of the Lenders Borrower, its Subsidiaries and covering each other Loan Party has obtained all material licenses or permits required (x) to do business as a small lender or small loan business or (y) to sell insurance, in each case from each applicable Governmental Authority in each state in which such customary matters as may be Person is required by the Administrative Agentto maintain such a license or permit;
(ixx) evidence that the Fees then due and payable under Section 3.53.6., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, Agent and the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(xxi) a Compliance Certificate and Borrowing Base Certificate calculated as of the Effective Date September 30, 2006 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Effective Date);
(xi) [reserved];
(xii) the results of a Disbursement Instruction Agreement effective as field audit and inspection conducted by the Agent or its agents at the cost and expense of the Agreement DateBorrower, the results of which must be satisfactory to the Agent in its sole discretion;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3all documents, 2016, by instruments and agreements relating to any intercompany loan among the BorrowerBorrower and/or its Subsidiaries, the Parentterms and conditions of which shall be satisfactory to the Agent in its sole discretion;
(xiv) all due diligence required by the Agent, satisfaction with the financial institutions from time corporate and capital structure of the Borrower and its Subsidiaries and with all legal, tax, accounting ERISA, business and other matters relating to time party thereto, KeyBank National Association, as administrative agentthe Borrower and its Subsidiaries, and final credit approval for the other parties thereto, transactions contemplated by this Agreement;
(xv) a copy of the Credit and Collections Guidelines as amended by that certain First Amendment to Term Loan Credit in effect on the Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoDate; and
(xivxvi) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, 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 (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class and Bid Rate Notes executed by the Borrower, payable to each applicable Lender of such Class (other than including any Designated Lender, if applicable but excluding any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.11.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the certificate or articles of incorporation or formationBorrower and the other Loan Parties, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument addressed to the Administrative Agent and the Lenders and addressing such matters as the Administrative Agent may reasonably require;
(if anyv) the Governing Documents of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party Party;
(vi) a good standing certificate with respect to Borrower, each Guarantor and (y) by the Secretary or Assistant Secretary each general partner, and each managing member (or other individual Person performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement Date;
(v) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party Persons issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Loan Party Person is organized, in which the Unencumbered Assets owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of Borrower, each Loan Party with respect Guarantor and their respective general partners and managing members (or Person performing similar functions) as to each of the partners, officers of such Loan Party or other Persons authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(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 or managing members (or other individual Persons performing similar functions) of each Loan Party such Persons of (A) the by-laws of such Loan Partyall partnership, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (Bcomparable) all corporate, partnership, member or other necessary action taken by such Loan Party Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiiix) an opinion a copy of counsel to each document or agreement evidencing any of the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Indebtedness described in Schedule 6.1(g) as Administrative Agent may request, in each case certified as true, correct and the Lenders and covering such customary matters as may be required complete by the Administrative Agentchief operating officer or chief financial officer of the Borrower;
(ixx) a Compliance Certificate calculated on a pro forma basis for the Borrower's fiscal quarter ending December 31, 2011;
(xi) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxiii) a Compliance Certificate calculated as of evidence that indebtedness, liabilities, or obligations owing by the Effective Date (giving pro forma effect to Loan Parties under the financing evidenced by this Existing Credit Agreement and the use of the proceeds of the Loans to shall be funded paid in full on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No there shall not have occurred any material adverse change in the business, assets, liabilities, condition (financial or otherwise), results of operations, or business prospects of the Borrower and its Subsidiaries taken as a whole;
(iii) 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 (iA) result in a Material Adverse Effect or (iiB) 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;
(div) The Parentthe Borrower, the Borrower other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(ev) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations., including without limitation, the Patriot Act; and
(fvi) Each 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 Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDocuments.
Appears in 1 contract
Sources: Credit Agreement (Colonial 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 satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Revolving Note) and complying with the terms of Section 2.11.
(a2.10.(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) an opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, and opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit J;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence that the Fees then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving on a pro forma effect to basis for the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date)Borrower’s fiscal quarter ended June 30, 2010;
(xi) [reserved];
(xiix) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixi) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its 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 EffectFee Letter;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, 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 (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Government Properties Income Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes, Term Notes of each Class and Bid Rate Notes executed by the Borrower, payable to each applicable Lender of such Class (other than including any Designated Lender, if applicable but excluding any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.112.12.
(a) and a replacement the Swingline Note Notes executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date[reserved];
(iv) an opinion of counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, Continuation and to request issuance of Letters of CreditBid Rate Quote Requests;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal year ending December 31, 2017;
(x) a Disbursement Instruction Agreement effective as of counsel to the Agreement Date;
(xi) evidence that all indebtedness, liabilities or obligations owing by the Loan Parties under the 2016 Term Loan Agreement shall have been refinanced (other than any Accommodation Subsidiary that is not a Material Subsidiary)or, addressed in the case of interest and fees accrued thereunder, paid in full) pursuant to the Administrative Agent this Agreement and the Lenders and covering such customary matters as may be required by the Administrative Agent2016 Term Loan Agreement shall have been terminated;
(ixxii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the reasonable and documented out-of-pocket fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parentthe Borrower, the Borrower other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which which, or the failure to make, give or receive which, would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Washington Real Estate Investment Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance or continuation 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 Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each Lender of (if requested by such Class (other than any Lender that has requested that it not receive a NoteLender) and complying with the terms applicable provisions of Section 2.112.12.
(a) and a replacement Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date[Reserved];
(iv) Opinions of counsel to the certificate or Loan Parties, addressed to the Agent and the Lenders and the Swingline Lender, addressing the matters set forth in Exhibit F;
(v) The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, Borrowing and to request the issuance of Letters of Credit;
(viiviii) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence Evidence that the Fees then due and payable under Section 3.53.6., together with all and any other feesFees, expenses and reimbursement reimbursable amounts due and payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative AgentEffective Date, for which invoices have been presented to the Borrower at least 2 Business Days prior to the Effective Date, have been paid;
(x) a A Compliance Certificate to be calculated based on the financial statements for the period ending as of the Effective Date (March 31, 2022, after giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the any Loans to be funded on the Agreement Effective Date);
(xi) [reserved];; and
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower Trust and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, the Borrower Trust 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 (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(e) The There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents;
(f) Upon the reasonable request of any Lender made through the Agent at least seven (7) Business Days prior to the Agreement Date, the Borrower and each other Loan Party shall have provided to the Administrative Agent (and the Lenders Agent shall forward to such Lender), and such Lender shall be reasonably satisfied with, the documentation and other information so requested by the Administrative Agent in order to comply connection with requirements of any applicable “know your customer” and Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such SubsidiaryPatriot Act, in each case at least three (3) Business Days prior to the Agreement Date;
(g) At least five (5) Business Days prior to the Effective Agreement Date., the Borrower shall deliver, to the Agent a Beneficial Ownership Certification in relation to the Borrower for any Lender that so requests through the Agent at least three (3) Business Days prior to the Agreement Date; and
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each applicable Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.11.(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors, if applicable, initially to be a party thereto;
(iv) an opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit H;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices the Notice of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate calculated on a pro forma basis for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Borrower’s fiscal quarter ending March 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2020;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) the Revolver First Amendment shall have closed, all signatures thereto shall have been released and such Revolver First Amendment shall be effective;
(xii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, Agent and the Lead Arrangers and any of the LendersArrangers, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been paid;
(xxiii) a Compliance Certificate calculated as Notice of the Effective Date (giving pro forma effect to the financing evidenced Borrowing executed by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No 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 (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, 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 (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with the requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.;
(fv) Each each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Agreement Date; and
(vi) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, initial Loans hereunder is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than excluding any Lender that has requested that it not receive a Note) executed by the Borrower, payable to each applicable Lender and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.10.(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Dateother Guarantors (if any) initially to be a party thereto;
(iv) an opinion of Vaisey, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLLC, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party Person and (y) certified as true, complete and correct copies by the Secretary or Assistant Secretary (or other individual performing similar functions) of such the applicable Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Borrower, Notices of Term Loan Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent[Intentionally Omitted];
(ixx) a Compliance Certificate calculated on a pro forma basis for the Parent’s fiscal quarter ending September 30, 2018;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxii) a Compliance Certificate calculated as the Notice of Term Loan Borrowing from the Effective Date (giving pro forma effect Borrower requesting Loans and indicating how the proceeds thereof are to be made available to the financing evidenced by this Agreement Borrower, and the use of the proceeds if any of the Loans initially are to be funded on LIBOR Loans, the Interest Period thereof;
(xiii) evidence that all indebtedness, liabilities or obligations owing under the Existing Term Loan Agreement has been paid in full, all Liens securing such indebtedness, liabilities or obligations (if any) have been released, and all commitments under such Existing Term Loan Agreement have been terminated or expired;
(xiv) upon the reasonable request of any Lender made at least five (5) Business Days prior to the Agreement Date);
, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and Anti-Money-Laundering Laws, including, without limitation, the Patriot Act, in each case at least three (xi3) [reserved];
(xii) a Disbursement Instruction Agreement effective as of Business Days prior to the Agreement Date;
(xiiixv) evidence of repayment in full of At least five (x5) that certain Term Loan Business Days prior to the Agreement dated as of May 3, 2016, by and among the BorrowerDate, the ParentBorrower shall deliver, the financial institutions from time to time party theretoeach Lender that so requests, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoa Beneficial Ownership Certification; and
(xivxvi) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No 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 (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The the Parent, the Borrower Borrower, the other Loan Parties, and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other shall have received all information requested by the Administrative Agent and each Lender in order to comply with requirements of any applicable “know your customer” and Anti-Money Laundering Laws, including, including without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.Patriot Act; and
(fv) Each 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 Party Documents. Without limiting the generality of the provisions of Section 12.5, for purposes of determining compliance with the conditions precedent set forth in this Section 6.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or Subsidiary thereof that qualifies as accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a “legal entity customer” under Lender unless the Beneficial Ownership Regulation Administrative Agent shall have delivered to the Administrative Agent, and any received notice from such Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the proposed Effective DateDate specifying its objection thereto.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction 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) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.112.8.
(a) and a replacement Swingline Note executed by the Borrower;
(iii) the Facility Guaranty executed by each of the Parent and each Material Subsidiary existing as of other Person that the Borrower elects to make a Guarantor on the Effective Date;
(iv) an opinion of counsel to the certificate or Loan Parties, addressed to the Agent, the Lenders, addressing the matters set forth in Exhibit F;
(v) the articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) Party, or, in the case of the Parent only, certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParent;
(vvi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party or its constituent partners or members authorized to execute and deliver the Loan Documents to which such Loan Party is a partyparty and, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower Notices then authorized to deliver the Notice of Borrowing, Notices of Conversion, Continuation and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of CreditConversion;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a certificate from a Responsible Officer of counsel the Parent and the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects and (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed y) immediately after giving effect to the Administrative Agent and the Lenders and covering such customary matters as may be required transactions contemplated by the Administrative Agentthis Agreement, no Default or Event of Default shall exist;
(ixx) evidence that the Fees then due and payable under Section 3.53.6., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(xxi) a Compliance Certificate calculated as of the Effective Date March 31, 2008 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Effective Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as the Notice of Borrowing from the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among Borrower for the Loans indicating how the proceeds thereof are to be made available to the Borrower, and if any of the ParentLoans initially are to be LIBOR Loans, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoInterest Periods therefore; and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status concerning the Parent or its Subsidiaries since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower Parent and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower 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 (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Parent, the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: Term Loan Agreement (Piedmont Office Realty Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Revolving Note) and complying with the terms of Section 2.11.
(a2.10.(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) an opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, and an opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated as of counsel to the Effective Date on a pro forma basis for the Borrower’s fiscal quarter ending June 30, 2011;
(x) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xi) evidence that all indebtedness, liabilities or obligations owing by the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to under the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative AgentExisting Credit Agreement shall have been paid in full;
(ixxii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full A copy of (xy) that certain Term Loan Agreement dated all Operating Agreements, all Ancillary Agreements, the Business Management Agreement, the Property Management Agreement, in each case certified as true, correct and complete by the chief operating officer or chief financial officer of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (yz) that certain Term Loan an Operating Agreement dated as of April 26, 2017, by and among Abstract with respect to each Operating Agreement for the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; andUnencumbered Assets;
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No 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 (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, 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 (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements the USA Patriot Act (Title III of any AntiPub. L. 107-Money Laundering Laws56 (signed into law October 26, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.2001)); and
(fv) Each 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 Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDocuments.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders Lender to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent Lender shall have received each of the following, in form and substance satisfactory to the Administrative AgentLender:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note The Fee Letter executed by the Borrower;
(iii) the Guaranty The Note executed by each the Borrower, and complying with the provisions of the Parent and each Material Subsidiary existing as of the Effective DateSection 2.9.;
(iv) The Depositary Agreement executed by the certificate Borrower, the Providers, the Lender and the Lockbox Bank;
(v) Evidence that the Lockbox Bank has agreed to cease transferring funds on deposit in the Primary Borrower Account to the Collection Account (as defined in the Existing RPTA);
(vi) [Intentionally omitted];
(vii) An opinion (or opinions) of counsel to the Loan Parties, addressed to the Lender, addressing the matters set forth in Exhibit E;
(viii) The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date (other than in the case of a Provider that is not a Material Provider) by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vix) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date (other than in the case of a Provider that is not a Material Provider) by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party (A) has a place of business or (B) is otherwise required to be so qualified and in the case of this clause (B), where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vix) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Conversion, Continuation and Notices of Continuation, Notices of Swingline Borrowing, Conversion and to request the issuance of Letters of Credit;
(viixi) copies Copies certified by the Secretary or Assistant Secretary of each Loan Party (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence that the The Fees then due and payable under Section 3.5., together with all the Fee Letter and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel Lender on or prior to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated A Compliance Certificate calculated as of May 3March 31, 20162005;
(xiv) A Monthly Report and Borrowing Base Certificate, by each calculated as of April 30, 2005;
(xv) Current UCC searches with respect to the Borrower and among each Material Provider, in form and substance satisfactory to the BorrowerLender, conducted in (A) the jurisdiction of formation of such Loan Party and (B) if such Loan Party was formed before July 1, 2001 (or January 1, 2002 if the state of formation is Alabama, Connecticut, Florida or Mississippi), the Parentjurisdiction(s) where such Loan Party’s chief executive office and/or principal place of business is located, in each case indicating that there are no UCC financing statements of record on any of the financial institutions from time assets of the Borrower or any Material Subsidiary other than Permitted Liens or Liens which were or are to time party theretobe terminated on or prior to the Effective Date;
(xvi) To the extent available, KeyBank National AssociationUCC searches with respect to any other Loan Party;
(xvii) Evidence that each document (including, as administrative agentwithout limitation, any UCC financing statement) required by the Security Documents or under Applicable Law or reasonably deemed necessary or appropriate by the Lender to be filed, registered or recorded in order to create in favor of the Lender a perfected first-priority Lien on the Collateral described therein, shall have been filed, registered or recorded or shall have been delivered to the Lender be in proper form for filing, registration or recordation.
(xviii) Certificates of insurance evidencing the existence of all insurance required to be maintained by Loan Parties pursuant to the Agreement, and the other parties Lender shall be satisfied with the type and extent of such coverage;
(xix) A payoff letter in form an substance reasonably satisfactory to the Lender with respect to the Indebtedness owing under the Existing Loan Agreement, together with such releases, authorizations or assignments as the Lender may reasonably request to evidence the termination, release or assignment of any Liens granted by any Loan Party pursuant thereto;
(xx) A collateral assignment with respect to all Leases under which SNH or one of its Subsidiaries is lessor, as amended by that certain First Amendment each in form and substance reasonably satisfactory to Term Loan Credit Agreement dated the Lender;
(xxi) Copies of each of the Sunrise Operating Agreements and the Leases with SNH or any Subsidiary of SNH in effect as of April 26the Agreement Date, 2017 certified as correct and complete by a senior officer of the Borrower;
(yxxii) that certain Term A Collateral Assignment of Payments executed by each Loan Agreement dated as of April 26, 2017, Party a party to a Sunrise Operating Agreement;
(xxiii) The Collateral Questionnaire duly executed by and the Borrower;
(xxiv) A letter agreement among the Borrower, parties to the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoExisting RPTA terminating such agreement; and
(xivxxv) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Lender:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders Lender any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its the Subsidiaries delivered to the Administrative Agent and the Lenders Lender prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) 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 partyDocuments;
(diii) 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 as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i1) any Applicable Law Law, (2) any of the Leases with SNH or any of its Subsidiaries or (ii3) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or 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 or Provider Documents to which it is a party; and
(eiv) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: Credit and Security Agreement (Five Star Quality Care 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 of each Class executed by the Borrower, payable to each applicable Lender of such Class (other than but excluding any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.12(a);
(iii) the Subsidiary Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) an opinion of counsel to the Borrower and such other Loan Parties as Administrative Agent may request, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices requests for Letters of ConversionCredit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Borrowing Base Certificate calculated as of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative AgentEffective Date;
(ixx) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2015;
(xi) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xii) copies of all Material Contracts and Specified Derivatives Contracts in existence on the Agreement Date;
(xiii) the Fee Letter;
(xiv) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxv) a Compliance Certificate calculated as of evidence that all indebtedness, liabilities or obligations owing by the Effective Date (giving pro forma effect to Loan Parties under the financing evidenced by this Existing Credit Agreement shall have been paid in full and the use of the proceeds of the Loans to be funded on the Agreement Date)all Liens securing such indebtedness, liabilities or other obligations have been released;
(xixvi) [reserved]with respect to each Borrowing Base Property identified on Schedule 4.1, each of the items referred to in Section 6.3 required to be delivered in connection with any Borrowing Base Property;
(xiixvii) a Disbursement Instruction Agreement effective as UCC, tax, judgment and lien search reports with respect to the Borrower, each other Loan Party and each Property in the Minimum Land Collateral in all necessary or appropriate jurisdictions indicating that there are no liens of the Agreement Daterecord on such property other than Permitted Liens;
(xiiixviii) evidence of repayment insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 is in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by force and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoeffect; and
(xivxix) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parentthe Borrower, the Borrower other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: Credit Agreement (LGI Homes, Inc.)
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as this Agreement and the making of a Loan or the issuance of a Letter of Credit, Loans on the Effective Date hereunder is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, a Note payable to each Lender of such Class (other than any Lender that has requested that it not receive requesting a Note) Note prior to the Effective Date pursuant to and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.13(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(ivA) an opinion of Polsinelli PC, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of organization or formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DatePerson;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party Person is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party Person authorized to execute and deliver the Loan Documents to which such Loan Party Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices the Notice of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan PartyPerson, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Parent Guarantor’s fiscal quarter ended March 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2017;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxii) a Compliance Certificate calculated as of an amendment to Revolving Credit Agreement, executed by the Effective Date (giving pro forma requisite parties, which amendment shall, inter alia, permit the term loan facility evidenced hereby and effect changes to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Revolving Credit Agreement dated as which conform with the applicable terms of April 26this Agreement, 2017 all in form and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among substance reasonably satisfactory to the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoAdministrative Agent; and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There no Default or Event of Default shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effectexist;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, 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 (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act;
(d) the representations and warranties made or deemed made by the Borrower and each other Loan Party in this Agreement and in the other Loan Documents delivered pursuant to Section 6.1 shall be true and correct; and
(e) the Administrative Agent shall have received a timely Notice of Borrowing. Each Credit Event shall constitute a certification by the Borrower to the effect set forth in clauses (b), (d) and (e) (both as of the date of the giving of notice relating to such Credit Event and, unless the Borrower otherwise notifies the Administrative Agent prior to the date of such Credit Event, as of the date of the occurrence of such Credit Event). In addition, the Borrower shall be deemed to have represented to the Administrative Agent and the Lenders at the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each time such Loan Party or Subsidiary thereof is made that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered all conditions to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to making of such Loan Party or such Subsidiary, contained in each case at least five (5) Business Days prior to the Effective Datethis Article VI have been satisfied.
Appears in 1 contract
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, this Agreement is subject to the satisfaction 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) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.112.8.
(a) and a replacement Swingline Note executed by the Borrower;
(iii) the Parent Guaranty reaffirmation executed by each Guarantor substantially in the form of the Parent and each Material Subsidiary existing as of the Effective DateExhibit B;
(iv) prepayment of the certificate Loans funded under the Original Credit Agreement by an amount at least equal to $96,000,000, such amount to be in immediately available funds;
(v) one or more opinions of counsel to the Loan Parties, addressed to the Agent and the Lenders, collectively addressing the matters set forth in Exhibit F;
(vi) the articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party Party, in case of the Borrower, and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each the Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effectthe State of California;
(viviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower Representative then authorized to deliver Notices of Borrowing, Notices of Conversion, Continuation and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of CreditConversion;
(viiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) a Security Deed executed by the Borrower granting to the Agent for the benefit of the Lenders a first-priority Lien in the Mortgaged Property;
(xi) Assignments of Leases and Rents executed by the Borrower granting to the Agent for the benefit of the Lenders first-priority Liens in all of the rents from, and leases of, the Mortgaged Property owned by the Borrower as of the date of such grant;
(xii) an environmental indemnity agreement executed by the Borrower in favor of the Agent and the Lenders;
(xiii) if requested by the Agent, collateral assignments of all Material Contracts, Entitlements, and any other rights or benefits of or appurtenant to the Mortgaged Property as of the date of such assignment, relating to the development, use, occupancy, operation, maintenance, enjoyment or ownership of any of such Mortgaged Property, together with any required consents to the collateral assignment thereof;
(xiv) an ALTA 1992 Form mortgagee’s Policy of Title Insurance (with deletion of the creditor’s rights exclusion and deletion of the mandatory arbitration provision) or other form acceptable to the Agent in favor of the Agent for the benefit of the Lenders with respect to the Mortgaged Property, including endorsements with respect to such items of coverage as the Agent may request (and which endorsements are available in the State of California), in a coverage amount equal to no less than the outstanding principal balance of the Loans, issued by a title insurance company acceptable to the Agent and with coinsurance or reinsurance (with direct access agreements) with title insurance companies acceptable to the Agent, showing the fee simple title to the land and improvements comprising such portion of the Mortgaged Property as vested in the Borrower, and insuring that the Liens granted by such Security Deeds are valid first priority Liens against the applicable portion of the Mortgaged Property, subject only to such restrictions, encumbrances, easements and reservations as are acceptable to the Agent;
(xv) a survey of the Mortgaged Property certified by a surveyor licensed in the jurisdiction where the Mortgaged Property is located to have been prepared in accordance with the then effective Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys, and if not adequately covered by the survey certification, evidence that the Mortgaged Property is not located in a Special Flood Hazard Area as defined by the Federal Insurance Administration;
(xvi) current updates of the UCC, tax, judgment and lien search reports with respect to the Borrower in all necessary or appropriate jurisdictions and under all legal and appropriate trade names indicating that there are no Liens of record on the Mortgaged Property, the Bosa Contract or any of the other assets of the Borrower other than Permitted Liens;
(xvii) an opinion of counsel admitted to practice law in the jurisdiction in which the Mortgaged Property is located and acceptable to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Agent, addressed to the Administrative Agent and the Lenders and each Lender covering such customary legal matters relating to the transactions contemplated hereby as the Agent may be required by reasonably request, including without limitation, the Administrative Agentenforceability of the Security Deeds;
(ixxviii) evidence that the insurance required for the Mortgaged Property owned by the Borrower under the Loan Documents is then in effect;
(xix) such other due diligence materials, instruments, documents, agreements, financing statements, certificates, opinions and other Security Documents as the Agent may reasonably request;
(xx) the Fees then due and payable under Section 3.53.6., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, Agent and the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxxi) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, Borrower or the Borrower and its Subsidiaries Guarantors delivered to the Administrative Agent and the Lenders prior to the Agreement Restatement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower and its Subsidiaries Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i1) any Applicable Law or (ii2) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as 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) Notes (or replacement Notes, as the case may be) of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) Note of such Class, and complying with the terms of Section 2.11.
(a2.11.(a) and a replacement Swingline Note executed by the Borrower;;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Dateother Guarantors initially to be a party thereto;
(iv) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(ivv) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement Date;Party;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of Credit;Continuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;;
(ix) a Compliance Certificate calculated on a pro forma basis for the previous four calendar quarters ending on June 30, 2018;
(x) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) [Reserved];
(xii) copies of all Material Contracts in existence on the Agreement Date and either entered into or amended in any material respect after April 2, 2015;
(xiii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) certificates of insurance evidencing the insurance then in effect with respect to the Properties and otherwise in compliance with Section 8.5.;
(xv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;materially adverse effect on the business, assets, liabilities, condition (financial or otherwise), results of operations or business prospects of the Parent, the Borrower and the Subsidiaries taken as a whole;
(c) No 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 (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;;
(d) The the Parent, the Borrower Borrower, the other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making ;
(e) there shall not have occurred or giving exist any other material disruption of which would not financial or capital markets that could reasonably be likely expected to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under transactions contemplated by the Loan Documents to which it is a partyDocuments; and
(ef) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information reasonably requested by the Administrative Agent and each Lender in order to comply with requirements of any applicable “know your customer” and Anti-Money Laundering Laws, including, including without limitation, the PATRIOT Act Patriot Act; and any applicable “know your customer” rules and regulations.
(fg) Each each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall shall, collectively, have delivered to the Administrative Agent, and any Lender requesting the same, a one Beneficial Ownership Certification in relation to each such Loan Party or such Subsidiary, in each case case, at least five (5) Business Days prior to the Effective Date..
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) : The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(ia) counterparts of this Agreement executed by each of the parties hereto;
(iib) Revolving Notes of each Class and Bid Rate Notes executed by the Borrower, payable to each applicable Lender of such Class (other than including any Designated Lender, if applicable, but excluding any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.11.
(a2.13(a) and a replacement the Swingline Note executed by the Borrower;
(iiic) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(ivd) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may request, addressed to the Administrative Agent and the Lenders;
(e) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vf) 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 within thirty (30) days of the date hereof, and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vig) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of ContinuationConversion, and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viih) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiii) a Compliance Certificate and an opinion of counsel to Unencumbered Asset Value Certificate calculated on a pro forma basis for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Borrower’s fiscal quarter ending September 30, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2014;
(ixj) evidence 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 Fees then Agreement Date and a Disbursement Instruction Agreement effective as of the Agreement Date;
(l) a complete listing of all Subsidiaries which are Non-Guarantor Entities;
(m) Borrower shall have paid to Administrative Agent, for the benefit of Lenders, all interest and other fees due and payable under Section 3.5.the Existing Credit Agreement, together with prorated to the Effective Date;
(n) Lenders, as applicable, shall have completed whatever balancing transfers amongst themselves as are necessary in order to result in each Lender having the outstanding balances referenced on Schedule 1.6 attached hereto;
(o) all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivp) such other documents, agreements agreements, and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, 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 (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Equity One, Inc.)
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, this Agreement is subject to the satisfaction or waiver of the following conditions precedent:precedent (the date of the satisfaction or waiver of the conditions set forth in this Section 6.1, the “Effective Date”):
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) to the extent requested by each Lender, Revolving Notes of each Class executed by the Borrower, payable to each applicable Lender of such Class (other than but excluding any Lender that has requested that it not to receive a NoteNotes) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.12(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date▇▇▇▇▇▇ REIT;
(iv) an opinion of (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to the Borrower and ▇▇▇▇▇▇ REIT, addressed to the Administrative Agent and the Lenders and covering the matters reasonably required by Administrative Agent and (B) ▇▇▇▇▇▇▇ LLP, Maryland counsel to the Borrower and ▇▇▇▇▇▇ REIT, addressed to the Administrative Agent and the Lenders and covering the matters reasonably required by the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Borrower and ▇▇▇▇▇▇ REIT, in each Loan Party case certified (x) as of a recent date by the Secretary of State of the state State of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateMaryland;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to the Borrower and ▇▇▇▇▇▇ REIT, in each Loan Party case issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party Maryland and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary the applicable secretary of State state (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party the Borrower and ▇▇▇▇▇▇ REIT with respect to each of the officers of such Loan Party the Borrower and ▇▇▇▇▇▇ REIT, as applicable, authorized to execute and deliver the Loan Documents to which each such Loan Party Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices Alternative Currency Credit Notices, requests for Letters of ConversionCredit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party the Borrower and ▇▇▇▇▇▇ REIT of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the or partnership agreement, if a limited or general partnershipas applicable, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member partnership or other necessary action taken by such Loan Party the Borrower and ▇▇▇▇▇▇ REIT, as applicable, to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated on a pro forma basis (taking into account the Unencumbered Pool Properties as of counsel the Agreement Date) for the Borrower’s fiscal quarter ending September 30, 2021;
(x) a Disbursement Instruction Agreement effective as of the Effective Date;
(xi) [intentionally omitted];
(xii) copies of all Material Contracts in existence on the Agreement Date not previously delivered to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ixxiii) evidence that the Fees then due and payable under Section 3.5., together with Fee Letter;
(xiv) all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the LendersLenders for which an invoice has been provided at least three (3) Business Days prior to the date hereof, including including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxv) a Compliance Certificate calculated as of at Administrative Agent’s request, insurance certificates, or other evidence, providing that the Effective Date insurance coverage required under Section 8.5 (giving pro forma effect to the financing evidenced by this Agreement including, without limitation, both property and the use of the proceeds of the Loans to be funded on the Agreement Date)liability insurance) is in full force and effect;
(xixvi) [reservedintentionally omitted];
(xiixvii) a Disbursement Instruction Agreement effective as complete listing of the Agreement Dateall Subsidiaries which are not Guarantors;
(xiiixviii) evidence of repayment that all accrued and unpaid interest and fees owing by the Loan Parties under the Existing Credit Facilities have been paid, in full of full, for which an invoice has been provided at least three (x3) that certain Term Loan Agreement dated as of May 3, 2016, by and among Business Days prior to the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretodate hereof; and
(xivxix) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Borrower, Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsDecember 31, budgets2020, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, 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 (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(ei) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Antiapplicable “know your customer” and anti-Money Laundering Lawsmoney laundering rules and regulations, including, without limitation, the PATRIOT USA Patriot Act and (ii) at least five (5) Business Days prior to the Effective Date, the Borrower shall deliver, on behalf of itself and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof Guarantor that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the sameRegulation, a Beneficial Ownership Certification in relation to itself and to such Loan Party or Guarantor, to each Lender that so requests such Subsidiary, in each case at least five (5) Business Days prior to the Effective Datea Beneficial Ownership Certification.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the reasonable satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties heretohereto (which, subject to Section 13.13(b), may include any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page that such party has signed a counterpart of this Agreement or such Loan Document);
(ii) to the extent requested by the Lenders, Notes of each Class executed made by the Borrower, payable to each applicable Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.10(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) an opinion of each of (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan Parties and (B) ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Maryland counsel to Spirit REIT, addressed to the Administrative Agent and the Lenders and covering the matters reasonably required by the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State (or equivalent Governmental Authority) of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effectdate;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate calculated on a pro forma basis for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Borrower’s fiscal quarter ending September 30, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2022;
(ixx) a completed Borrower Administrative Questionnaire effective as of the Agreement Date;
(xi) [reserved];
(xii) copies of all Material Contracts and confirmations relating to Specified Derivatives Contracts in existence on the Agreement Date;
(xiii) the Fee Letter;
(xiv) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxv) such UCC, tax, judgment and lien search reports with respect to each Loan Party in its jurisdiction of organization indicating that there are no liens of record other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiariesthan Permitted Liens.
(b) There there shall not have occurred or become known to any material adverse change in the Administrative Agent or any of the Lenders any event, condition, situation or status Borrower’s financial condition since the date of the information contained in most recent quarterly financial statement filed with the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders SEC on Form 10-K prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effectdate of this Agreement;
(c) No 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 (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parentthe Borrower, the Borrower other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(ei) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations.
, including the Patriot Act and (fii) Each Loan Party or Subsidiary thereof that to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered Regulation, at least five days prior to the Administrative AgentEffective Date, and any Lender requesting that has requested, in a written notice to the sameBorrower at least 10 days prior to the Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Loan Party or Beneficial Ownership Certification (provided that, upon the execution and delivery by such SubsidiaryLender of its signature page to this Agreement, the condition set forth in each case at least five this clause (5ii) Business Days prior shall be deemed to the Effective Datebe satisfied).
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.112.10.
(a) , and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing that owns or leases a Collateral Property as of the Effective Date;
(iv) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(v) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of ConversionSwingline Borrowings, Notices of Continuation, Continuation and Notices of Swingline Borrowing, 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 each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Parties, addressed to the Administrative Agent and Agent, the Lenders and covering such customary the Swingline Lender, addressing the matters as may be required by the Administrative Agentset forth in Exhibit M;
(ix) evidence that the Fees then due and payable under Section 3.53.6., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved]a Borrowing Base Certificate calculated as of the Effective Date;
(xii) a Disbursement Instruction Agreement effective the Borrower shall have consummated its initial public offering of common shares and shall have received Net Proceeds therefrom as of contemplated in the Agreement DateBorrower’s Form S-11 as filed with the Securities and Exchange Commission;
(xiii) evidence a statement of repayment funds flow setting forth in full reasonable detail the application of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, such Net Proceeds and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as proceeds of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, initial Loans being funded on the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoEffective Date; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Agent and the Lenders:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its other Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The the Parent, the Borrower and its other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes, Term Notes of each Class and Bid Rate Notes executed by the BorrowerBorrowers, payable to each applicable Lender of such Class (including any Designated Lender, if applicable), other than any Lender that has requested that it not receive a Note) Notes and complying with the terms of Section 2.112.12.
(a) and a replacement the Swingline Note Notes executed by the BorrowerBorrowers;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantor;
(iv) an opinion or opinions of counsel to the Borrowers and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit N;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the BorrowerBorrower Representative, authorized to execute and deliver on behalf of the each Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, Bid Rate Quote Requests and to request issuance of Letters of CreditBid Rate Quote Acceptances;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party’s by-laws, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate for the Loan Parties (other than any Accommodation Subsidiary that is not Parent calculated on a Material Subsidiary)pro forma basis for the Parent’s fiscal quarter ended September 30, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2017;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) the address of each Property subject to a Disbursement Instruction Agreement effective Mortgage listed on Schedule 1.1 and such other information as of reasonably requested by the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time Administrative Agent or any Lender to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment complete its flood due diligence with respect to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretosuch Properties; and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender (through the Administrative Agent), may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower Parent and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower Parent 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 (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The each Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any applicable “know your customer” and Anti-Money Laundering Laws, including, including without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsPatriot Act.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Sl Green Operating Partnership, L.P.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each applicable Lender of such Class (other than any Lender that has requested that it not receive a Revolving Note) and complying with the terms of Section 2.112.10.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Dateother Guarantors initially to be a party thereto;
(iv) an opinion of legal counsel to the Borrower and the other Loan Parties, reasonably satisfactory to the Administrative Agent, addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit H;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate calculated on a pro forma basis for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Parent’s fiscal quarter ending December 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2011;
(ixx) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of if required by the Agreement DateAdministrative 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;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, Agent may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No 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 (iA) result in a Material Adverse Effect Effect, other than as previously disclosed to Administrative Agent and the Lenders in writing and approved by the Administrative Agent and Lenders in writing, or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The the Parent, the Borrower and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, bound except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or 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; and;
(eiv) The the Parent, the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations., including without limitation, the Patriot Act; and
(fv) Each 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 Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDocuments.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is and the effectiveness of the amendment, restatement and consolidated of the Existing Agreements, are subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.11.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateParent;
(iv) an opinion of counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in the form set forth in Exhibit J;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Revolving Borrowing, Notices the Notice of Conversion, Notices of ContinuationTerm Borrowing, Notices of Swingline Borrowing, and to request issuance of requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated as of counsel March 31, 2014 giving pro forma effect to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required transactions contemplated by the Administrative Agentthis Agreement;
(ixx) a completed Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of evidence that all accrued and unpaid interest and fees owing by the Agreement Date;
(xiii) evidence of repayment Loan Parties under the Existing Agreements have been paid in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretofull; and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There since December 31, 2013, there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation event or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date condition that has had or could reasonably be expected to result in have a Material Adverse Effect; provided that the Administrative Agent and the Lenders agree that the outstanding verdict and any judgment in the California Hawaiian Case shall not constitute a Material Adverse Effect unless (i) such judgment or any resulting order shall have continued for a period of 30 days without being paid, stayed or dismissed through appropriate proceedings and (ii) the aggregate amount awarded in connection with such verdict and/or judgment exceeds $120,000,000;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect (the Administrative Agent and the Lenders agree that the outstanding verdict and any judgment in the California Hawaiian Case shall not constitute a Material Adverse Effect unless (x) such judgment or any resulting order shall have continued for a period of 30 days without being paid, stayed or dismissed through appropriate proceedings and (y) the aggregate amount awarded in connection with such verdict and/or judgment exceeds $120,000,000) or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The the Parent, the Borrower Borrower, the other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (Ax) have a Material Adverse Effect, or (By) restrain or enjoin or impose materially burdensome conditions onenjoin, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations.
, including without limitation, the Patriot Act. The Administrative Agent shall give notice (fwhich may be by electronic mail or other similar means of electronic communication) Each Loan Party or Subsidiary thereof to the Borrower and the Lenders promptly upon is determination that qualifies as a “legal entity customer” under all of the Beneficial Ownership Regulation conditions precedent set forth in this Section shall have delivered to been fulfilled or waived by all of the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateLenders.
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 of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any a Lender that has requested that it not to receive a Revolving Note) and complying with the terms applicable provisions of Section 2.11.
(a) , and a replacement the Swingline Note Notes executed by the Borrower;
(iii) the The Guaranty executed by each of the Parent and each Material Subsidiary existing to which either of the conditions set forth in Section 7.12.(a) applies as of the Effective Date;
(iv) A Disbursement Instruction Agreement effective as of the certificate or Agreement Date;
(v) Customary opinions of counsel to the Loan Parties, addressed to the Administrative Agent and, the Lenders;
(vi) The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified (x) as of a recent date by the Secretary of State (or comparable official) of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State (or comparable official) of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (or comparable official and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of ConversionSwingline Borrowings, Notices of Continuation, Continuation and Notices of Swingline Borrowing, Conversion and to request the issuance of Letters of Credit;
(viiix) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ax) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (By) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required If requested by the Administrative Agent, certificates of insurance evidencing the existence of all insurance required to be maintained by Loan Parties pursuant to the Agreement, and the Administrative Agent shall be reasonably satisfied with the type and extent of such coverage;
(ixxi) evidence that the The Fees then due and payable under Section 3.53.6., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(xxii) a A Compliance Certificate calculated as of the Effective Date March 31, 2019 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Effective Date);
(xixiii) [reserved];
The documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Corruption Laws and Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, at least five (xii5) a Disbursement Instruction Agreement effective as of Business Days prior to the Agreement Closing Date;
(xiiixiv) evidence of repayment A Beneficial Ownership Certification in full of relation to each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation at least five (x5) Business Days prior to the Closing Date;
(xv) Evidence that certain all “Indebtedness” (as defined in the Existing Term Loan Agreement) outstanding under the Existing Term Loan Agreement dated as shall be repaid with the proceeds of May 3the Revolving Loans to be made by the Lenders hereunder on the Effective Date and evidence that all other indebtedness, 2016, liabilities or obligations owing by and among the Borrower, Loan Parties under the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Existing Term Loan Agreement dated as of April 26, 2017, by shall have been paid in full and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoall commitments thereunder are terminated; and
(xivxvi) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(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 Parent, the Borrower and its the other Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(diii) The Parent, the Borrower 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 (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: Credit Agreement (CubeSmart, L.P.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class and Term Notes executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.11.
(a) , and a replacement the Swingline Note executed by the Borrower;
(iii) the The Guaranty executed by each of the Parent and each Material Subsidiary other Guarantor existing as of the Effective Date;
(iv) A Transfer Authorizer Designation Form effective as of the certificate or Agreement Date;
(v) An opinion of counsel to the Loan Parties, addressed to the Administrative Agent and, the Lenders, addressing the matters set forth in Exhibit J;
(vi) The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified (x) as of a recent date by the Secretary of State (or comparable official) of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State (or comparable official) of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (or comparable official and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of ConversionSwingline Borrowings, Notices of Continuation, Continuation and Notices of Swingline Borrowing, Conversion and to request the issuance of Letters of Credit;
(viiix) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ax) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (By) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required If requested by the Administrative Agent, certificates of insurance evidencing the existence of all insurance required to be maintained by Loan Parties pursuant to the Agreement, and the Administrative Agent shall be reasonably satisfied with the type and extent of such coverage;
(ixxi) evidence that the The Fees then due and payable under Section 3.53.6., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(xxii) a A Compliance Certificate calculated as of the Effective Date June 30, 2010 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Effective Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;; and
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; 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 Parent, the Borrower and its the other Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower 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 (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower and each There shall not have occurred or exist any other Loan Party shall have provided material adverse change or material disruption in the loan syndication, financial, banking or capital markets that, in the reasonable judgment of the Joint Lead Arrangers, has impaired or could reasonably be expected to impair, the syndication of the Loans, either (i) occurring on or after August 20, 2010, or (ii) occurring prior to August 20, 2010 but becoming known to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering LawsJoint Lead Arrangers after August 20, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations2010.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: Credit Agreement (U-Store-It Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction 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) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.8.(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary (other than an Excluded Subsidiary or a Foreign Subsidiary) existing as of the Effective Date;
(iv) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement Date;
(v) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices the Notice of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(vii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence that the Fees then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved]with respect to each Property identified on Schedule 4.1., each of the items referred to in Section 4.1.(b)(i), (ii), (iv) and (vi) required to be delivered in connection with any Unencumbered Property and a pro forma operating budget for such Property with respect to the current fiscal year;
(xii) a Disbursement Instruction Agreement effective as of insurance certificates, or other evidence, providing that the Agreement Dateinsurance coverage required under Section 8.5. (including, without limitation, both property and liability insurance) is in full force and effect;
(xiii) each of the items required pursuant to Section 13.20.(b) with respect to the Closing Date Mortgage and evidence that the real property subject to the Closing Date Mortgage is not in a special flood hazard area;
(xiv) certified copies of repayment in full of (x) that certain enforceable amendments to the Revolving Facility and the Existing Term Loan Agreement dated as of May 3, 2016, by and among effected on the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoEffective Date; and
(xivxv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, 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 (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, this Agreement is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) to the extent requested by each Lender, Revolving Notes of each Class and Terms Notes executed by the Borrower, payable to each applicable Lender of such Class (other than but excluding any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.has
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) an opinion of (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters reasonably required by Administrative Agent and (B) ▇▇▇▇▇▇▇ LLP, Maryland counsel to the Borrower and ▇▇▇▇▇▇ REIT, addressed to the Administrative Agent and the Lenders and covering the matters reasonably required by the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party issued within thirty (30) days of the date hereof and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated on a pro forma basis (taking into account the Unencumbered Pool Properties as of counsel the Agreement Date) for the Borrower’s fiscal quarter ending June 30, 2014;
(x) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) intentionally omitted;
(xii) copies of all Material Contracts in existence on the Agreement Date not previously delivered to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ixxiii) evidence that the Fees then due and payable under Section 3.5., together with Fee Letter;
(xiv) all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the LendersLenders for which an invoice has been provided at least three (3) Business Days prior to the date hereof, including including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxv) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement extent not previously delivered to Administrative Agent, insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 (including, without limitation, both property and the use of the proceeds of the Loans to be funded on the Agreement Date)liability insurance) is in full force and effect;
(xixvi) [reserved];
(xii) a Disbursement Instruction Agreement effective as 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 the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the record other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretothan Permitted Liens; and
(xivxvii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions a complete listing of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation all Subsidiaries that which are not also Material SubsidiariesGuarantors.
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsJune 30, budgets2014, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No 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 (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, 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 (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Antiapplicable “know your customer” and anti-Money Laundering Lawsmoney laundering rules and regulations, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.USA Patriot Act; and
Appears in 1 contract
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, this Agreement is subject to the satisfaction or waiver of the following conditions precedent:precedent (the date of the satisfaction or waiver of the conditions set forth in this Section 6.1, the “Effective Date”):
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) to the extent requested by each Lender, Notes of each Class executed by the Borrower, payable to each applicable Lender of such Class (other than but excluding any Lender that has requested that it not to receive a NoteNotes) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.12(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date▇▇▇▇▇▇ REIT;
(iv) an opinion of (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters reasonably required by Administrative Agent and (B) ▇▇▇▇▇▇▇ LLP, Maryland counsel to the Borrower and ▇▇▇▇▇▇ REIT, addressed to the Administrative Agent and the Lenders and covering the matters reasonably required by the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party issued within thirty (30) days of the date hereof and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) a Compliance Certificate calculated on a pro forma basis (taking into account the Unencumbered Pool Properties as of the Agreement Date) for the Borrower’s fiscal quarter ending December 31, 2014;
(x) a Disbursement Instruction Agreement effective as of the Effective Date;
(xi) evidence of the substantially concurrent (pursuant to an opinion escrow arrangement reasonably satisfactory to Administrative Agent) closing of counsel (A) “The Redwood Portfolio” acquisition by Borrower and ▇▇▇▇▇▇ REIT pursuant to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Asset Purchase Agreement among the sellers named therein, addressed the ▇▇▇▇▇▇ REIT, and Borrower delivered to the Administrative Agent and certain other initial lender parties on December 6, 2014, at 4:45 pm Pacific Time (the Lenders “Acquisition”) and covering such customary matters as may the termination of all commitments, in their entirety, to issue the up to $1.75 billion senior unsecured bridge term loan proposed to be required by made to the Borrower pursuant to the $1.75BN Bridge Commitment Letter and (B) the Second Amended and Restated Credit Agreement;
(xii) copies of all Material Contracts in existence on the Agreement Date not previously delivered to Administrative Agent;
(ixxiii) evidence that the Fees then due and payable under Section 3.5., together with Fee Letter;
(xiv) all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the LendersLenders for which an invoice has been provided at least three (3) Business Days prior to the date hereof, including including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxv) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement extent not previously delivered to Administrative Agent, insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 (including, without limitation, both property and the use of the proceeds of the Loans to be funded on the Agreement Date)liability insurance) is in full force and effect;
(xixvi) [reserved];
(xii) a Disbursement Instruction Agreement effective as 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 the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the record other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretothan Permitted Liens; and
(xivxvii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions a complete listing of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation all Subsidiaries that which are not also Material SubsidiariesGuarantors.
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsDecember 31, budgets2014, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No 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 (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, 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 (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Antiapplicable “know your customer” and anti-Money Laundering Lawsmoney laundering rules and regulations, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.USA Patriot Act; and
(fv) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation there shall not have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days occurred prior to the Effective Datedate hereof (but excluding, for the avoidance of doubt, the date hereof pursuant to the funding of the cost of the Acquisition from other sources) a termination of the commitments under the Commitment Letter, dated December 6, 2014, among the Parent, Borrower, ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇▇▇ Fargo Securities, LLC, Bank of America, N.A., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and ▇▇▇▇▇▇▇ Sachs Bank USA, with respect to the proposed $1.75 billion senior unsecured bridge term loan (the “$1.75BN Bridge Commitment Letter”); and
(vi) the aggregate commitment of ▇▇▇▇▇ Fargo Bank, National Association, under the Second Amended and Restated Credit Agreement shall have been reduced to $255,000,000 or less.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Hudson Pacific 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 or continuation 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 Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the BorrowerBorrowers, payable to each Lender of (if requested by such Class (other than any Lender that has requested that it not receive a NoteLender) and complying with the terms applicable provisions of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.10;
(iii) the The Guaranty executed by each of the Parent and each Material Subsidiary Guarantor existing as of the Effective Date;
(iv) Opinions of counsel to the certificate or Loan Parties, addressed to the Agent and the Lenders, addressing the matters set forth in Exhibit F;
(v) The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party, unless the articles of incorporation, articles of organization, certificates of limited partnership or other comparable organizational instruments (if any) of such Loan Party were previously delivered under the Existing Credit Agreement and (y) by have not been amended, restated, supplemented or otherwise modified since the date previously delivered thereunder and remain in full force and effect on the Agreement Date, in which case the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being may provide a true, correct and complete copy thereof as of the Agreement Datecertificate signed by such Person providing a certification to that effect;
(vvi) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the BorrowerBorrowers, authorized to execute and deliver on behalf the officers of the Borrower Representative then authorized to deliver Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, Conversion and to request the issuance of Letters of Credit;
(viiviii) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity entity, the copies of which, if previously delivered under the Existing Credit Agreement, may be certified by certifying that the copies of any of foregoing previously delivered to the Agent and the Lenders under the Existing Credit Agreement have not been amended, restated, supplemented or otherwise modified since the date previously delivered thereunder and that each remains in full force and effect as of the Agreement Date, so long as that is the case, and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence Evidence that the Fees then due and payable under Section 3.5.3.6, together with all and any other feesFees, expenses and reimbursement reimbursable amounts due and payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative AgentEffective Date, for which invoices have been presented to the Borrowers at least 2 Business Days prior to the Effective Date, have been paid;
(x) a A Compliance Certificate to be calculated based on the financial statements for the period ending as of the Effective Date (September 30, 2012, after giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the any Loans to be funded on the Agreement Effective Date), and giving effect to the Borrowing Base Assets Pool as of the Effective Date;
(xi) [reserved]A Borrowing Base Certificate dated as of the Effective Date;
(xii) a Disbursement Instruction Agreement effective Such due diligence (including lien searches and/or title reports) with respect to the Borrowing Base Assets Pool as the Agent on behalf of the Agreement DateLenders may reasonably request;
(xiii) evidence of repayment in full of (x) that certain The Existing Term Loan Agreement dated as shall have been executed and in full force and effect simultaneously with the effectiveness of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; andthis Agreement;
(xiv) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of request consistent with the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.items required under the Existing Credit Agreement; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower Trust and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower Borrowers or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower Trust 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 (i1) any Applicable Law or (ii2) any agreement, document or instrument to which any Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the any Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(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
(ev) The Borrower Borrowers and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements the USA Patriot Act (Title III of any AntiPub. L. 107-Money Laundering Laws56 (signed into law October 26, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations2001)).
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance or continuation 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 Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each Lender of (if requested by such Class (other than any Lender that has requested that it not receive a NoteLender) and complying with the terms applicable provisions of Section 2.112.12.
(a) and a replacement Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date[Reserved];
(iv) Opinions of counsel to the certificate or Loan Parties, addressed to the Agent and the Lenders and the Swingline Lender, addressing the matters set forth in Exhibit F;
(v) The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, Borrowing and to request the issuance of Letters of Credit;
(viiviii) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence Evidence that the Fees then due and payable under Section 3.53.6., together with all and any other feesFees, expenses and reimbursement reimbursable amounts due and payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative AgentEffective Date, for which invoices have been presented to the Borrower at least 2 Business Days prior to the Effective Date, have been paid;
(x) a A Compliance Certificate to be calculated based on the financial statements for the period ending as of the Effective Date (September 30, 2018, after giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the any Loans to be funded on the Agreement Effective Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower Trust and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, the Borrower Trust 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 (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(e) The There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents;
(f) Upon the reasonable request of any Lender made through the Agent at least seven (7) Business Days prior to the Agreement Date, the Borrower and each other Loan Party shall have provided to the Administrative Agent (and the Lenders Agent shall forward to such Lender), and such Lender shall be reasonably satisfied with, the documentation and other information so requested by the Administrative Agent in order to comply connection with requirements of any applicable “know your customer” and Anti-Money Money-Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such SubsidiaryPatriot Act, in each case at least three (3) Business Days prior to the Agreement Date; and
(g) At least five (5) Business Days prior to the Effective Agreement Date, the Borrower shall deliver, to the Agent a Beneficial Ownership Certification in relation to the Borrower for any Lender that so requests through the Agent at least three (3) Business Days prior to the Agreement Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of 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) Notes (or replacement Notes, as the case may be) of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) Note of such Class, and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Dateother Guarantors initially to be a party thereto;
(iv) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate calculated on a pro forma basis for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)previous four calendar quarters ending on June 30, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2018;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) [Reserved];
(xii) copies of all Material Contracts in existence on the Agreement Date and either entered into or amended in any material respect after April 2, 2015;
(xiii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxiv) a Compliance Certificate calculated as certificates of insurance evidencing the Effective Date (giving pro forma insurance then in effect with respect to the financing evidenced by this Agreement Properties and the use of the proceeds of the Loans to be funded on the Agreement Date)otherwise in compliance with Section 8.5.;
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effectmaterially adverse effect on the business, assets, liabilities, condition (financial or otherwise), results of operations or business prospects of the Parent, the Borrower and the Subsidiaries taken as a whole;
(c) No 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 (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The the Parent, the Borrower Borrower, the other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making ;
(e) there shall not have occurred or giving exist any other material disruption of which would not financial or capital markets that could reasonably be likely expected to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under transactions contemplated by the Loan Documents to which it is a party; andDocuments;
(ef) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information reasonably requested by the Administrative Agent and each Lender in order to comply with requirements of any applicable “know your customer” and Anti-Money Laundering Laws, including, including without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.Patriot Act; and
(fg) Each each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall shall, collectively, have delivered to the Administrative Agent, and any Lender requesting the same, a one Beneficial Ownership Certification in relation to each such Loan Party or such Subsidiary, in each case case, at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes (or replacement Notes, as the case may be) of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) Note of such Class, and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Dateother Guarantors initially to be a party thereto;
(iv) an opinion of L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate calculated on a pro forma basis for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)previous four calendar quarters ending on June 30, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2018;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) [Reserved];
(xii) copies of all Material Contracts in existence on the Agreement Date and either entered into or amended in any material respect after April 2, 2015;
(xiii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxiv) a Compliance Certificate calculated as certificates of insurance evidencing the Effective Date (giving pro forma insurance then in effect with respect to the financing evidenced by this Agreement Properties and the use of the proceeds of the Loans to be funded on the Agreement Date)otherwise in compliance with Section 8.5.;
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effectmaterially adverse effect on the business, assets, liabilities, condition (financial or otherwise), results of operations or business prospects of the Parent, the Borrower and the Subsidiaries taken as a whole;
(c) No 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 (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The the Parent, the Borrower Borrower, the other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making ;
(e) there shall not have occurred or giving exist any other material disruption of which would not financial or capital markets that could reasonably be likely expected to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under transactions contemplated by the Loan Documents to which it is a party; andDocuments;
(ef) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information reasonably requested by the Administrative Agent and each Lender in order to comply with requirements of any applicable “know your customer” and Anti-Money Laundering Laws, including, including without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.Patriot Act; and
(fg) Each each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall shall, collectively, have delivered to the Administrative Agent, and any Lender requesting the same, a one Beneficial Ownership Certification in relation to each such Loan Party or such Subsidiary, in each case case, at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, initial Loans hereunder is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Term Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than excluding any Lender that has requested that it not receive a Note) executed by the Borrower, payable to each applicable Lender and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.10.(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as owner of an Eligible Property (other than the Effective DateBorrower);
(iv) an opinion of Tones Vaisey, PLLC, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party the Borrower and the Parent certified (x) as of a recent date by the Secretary of State of the state of formation of such Person and of each other Loan Party certified as true, complete and (y) correct copies by the Secretary or Assistant Secretary (or other individual performing similar functions) of such each other Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Borrower, Notices of Term Loan Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Borrowing Base Certificate calculated as of counsel September 30, 2015 giving pro forma effect to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agenttransactions contemplated herein;
(ixx) a Compliance Certificate calculated on a pro forma basis for the Parent’s fiscal quarter ending September 30, 2015;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxii) a Compliance Certificate calculated as the Notice of Term Loan Borrowing from the Effective Date (giving pro forma effect Borrower requesting Loans and indicating how the proceeds thereof are to be made available to the financing evidenced by this Agreement Borrower, and the use of the proceeds if any of the Loans initially are to be funded on LIBOR Loans, the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement DateInterest Period thereof;
(xiii) evidence documentation evidencing that the Existing Credit Agreements have been amended such that the applicable terms of repayment this Agreement are consistent with the terms of the Existing Credit Agreements and that the terms of this Agreement do not conflict with the terms of the Existing Credit Agreements, including without limitation, amending the Negative Pledge provisions of the Existing Credit Agreements to permit this Agreement to provide for the Negative Pledge pursuant to Section 10.2. on the same terms as such Negative Pledge in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan each such Existing Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoAgreement; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No 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 (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The the Parent, the Borrower Borrower, the other Loan Parties, and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The the Parent, the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements the USA Patriot Act (Title III of any AntiPub. L. 107-Money Laundering Laws56 (signed into law October 26, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.2001)); and
(fv) Each 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 Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDocuments.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent::
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent::
(i) counterparts of this Agreement executed by each of the parties hereto;;
(ii) Notes (or replacement Notes, as the case may be) of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) Note of such Class, and complying with the terms of Section 2.11.
(a2.11.(a) and a replacement Swingline Note executed by the Borrower;;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Dateother Guarantors initially to be a party thereto;
(iv) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(ivv) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement Date;Party;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of Credit;Continuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;;
(ix) a Compliance Certificate calculated on a pro forma basis for the previous four calendar quarters ending on June 30, 2018;
(x) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) [Reserved];
(xii) copies of all Material Contracts in existence on the Agreement Date and either entered into or amended in any material respect after April 2, 2015;
(xiii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) certificates of insurance evidencing the insurance then in effect with respect to the Properties and otherwise in compliance with Section 8.5.;
(xv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;materially adverse effect on the business, assets, liabilities, condition (financial or otherwise), results of operations or business prospects of the Parent, the Borrower and the Subsidiaries taken as a whole;
(c) No 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 (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;;
(d) The the Parent, the Borrower Borrower, the other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making ;
(e) there shall not have occurred or giving exist any other material disruption of which would not financial or capital markets that could reasonably be likely expected to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under transactions contemplated by the Loan Documents to which it is a partyDocuments; and
(ef) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information reasonably requested by the Administrative Agent and each Lender in order to comply with requirements of any applicable “know your customer” and Anti-Money Laundering Laws, including, including without limitation, the PATRIOT Act Patriot Act; and any applicable “know your customer” rules and regulations.
(fg) Each each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall shall, collectively, have delivered to the Administrative Agent, and any Lender requesting the same, a one Beneficial Ownership Certification in relation to each such Loan Party or such Subsidiary, in each case case, at least five (5) Business Days prior to the Effective Date..
Appears in 1 contract
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, this Agreement is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, a Note payable to each Lender of such Class not party to the Third Amended Credit Agreement and a replacement Note payable to each Lender whose Commitment is being increased pursuant to this Agreement (other than excluding, in each case, any Lender that has requested that it not receive a Note) and ), in each case complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.13(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(ivA) an opinion of Polsinelli PC, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of organization or formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DatePerson;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party Person is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party Person authorized to execute and deliver the Loan Documents to which such Loan Party Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan PartyPerson, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Parent Guarantor’s fiscal quarter ended December 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2014;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxii) a Compliance Certificate calculated evidence reasonably satisfactory to the Administrative Agent that (A) all accrued and unpaid interest, fees and expenses under the Third Amended Credit Agreement shall have been fully paid, the commitments thereunder shall be amended and restated as of the Effective Date date hereof as set forth on Schedule 1 hereto, and any and all Liens thereunder have been terminated and released and (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xiB) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment each Departing Lender shall have received payment in full of (x) that certain Term Loan Agreement dated as all of May 3, 2016, by and among the Borrower, “Obligations” under the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Third Amended Credit Agreement dated (other than obligations to pay fees and expenses with respect to which the Borrower has not received an invoice, contingent indemnity obligations and other contingent obligations owing to it under the “Loan Documents” as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among defined in the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoThird Amended Credit Agreement); and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There No Default or Event of Default shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effectexist;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, 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 (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations., including without limitation, the Patriot Act; and
(fd) Each The representations and warranties made or deemed made by the Borrower and each other Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under in this Agreement and in the Beneficial Ownership Regulation other Loan Documents delivered pursuant to Section 6.1 shall have delivered to the Administrative Agent, be true and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Datecorrect.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.112.10.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Dateother Guarantors initially to be a party thereto;
(iv) an opinion of counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit O;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Revolving Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel a Compliance Certificate calculated on a pro forma basis after giving effect to the Loan Parties Public Offering (other than any Accommodation Subsidiary that is not a Material Subsidiaryas defined in clause (x) below), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ixx) evidence that (A) the Parent’s registration statement on Form S-11 filed on October 4, 2010 with the Securities and Exchange Commission has become effective, (B) the public offering of common stock by the Parent contemplated by such Form S-11 (the “Public Offering”) has occurred and that the same has resulted in receipt by the Parent of Net Proceeds of not less than [$290,000,000] and (C) the Parent’s common stock has trading privileges on the New York Stock Exchange or is subject to price quotations on The NASDAQ Stock Market’s National Market System;
(xi) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5. (including, without limitation, both property and liability insurance) is in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by force and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoeffect; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its the other Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The the Parent, 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 (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin 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 any material obligations under the Loan Documents to which it is a party; and;
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements the USA Patriot Act (Title III of any AntiPub. L. 107-Money Laundering Laws56 (signed into law October 26, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.2001)); and
(fv) Each 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 Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDocuments.
Appears in 1 contract
Sources: Credit Agreement (Pacific Office Properties 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 and the effectiveness of the amendment and restatement of the Existing Credit Agreement, are subject to the satisfaction or waiver of the following conditions precedent:
: (a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
: (i) counterparts of this Agreement executed by each of the parties hereto;
; (ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower;
2.11.(a); (iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date;
Parent; (iv) an opinion of counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in the form set forth in Exhibit J; (v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and Party; (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement Date;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of - 71 - LEGAL02/44384586v6 taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
; (vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Revolving Borrowing, the Notice of Term Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
; (viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
; (viiiix) an opinion a Compliance Certificate calculated as of counsel March 31, 2021 giving pro forma effect to the Loan Parties transactions contemplated by this Agreement; (other than any Accommodation Subsidiary that is not x) a Material Subsidiary), addressed to completed Disbursement Instruction Agreement effective as of the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
Agreement Date; (ixxi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
; (xii) a Disbursement Instruction evidence that all accrued and unpaid interest and fees owing by the Loan Parties under the Existing Credit Agreement effective as have been paid in full and that the principle amount of the Agreement Date;
Existing Term Loans and all interest, fees and other amounts owed with respect to the Existing Term Loans have been paid in full and that the agreement evidencing the Existing Term Loans has been terminated; and (xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
; (b) There since December 31, 2020, there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation event or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date condition that has had or could reasonably be expected to result in have a Material Adverse Effect;
; (c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, 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 (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(ed) The Borrower and each the Parent, the Borrower, the other Loan Party Parties and the other Subsidiaries shall have provided to the Administrative Agent received all approvals, consents and the Lenders the documentation waivers, and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, made or given all necessary filings and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.- 72 - LEGAL02/44384586v6
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 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) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a2.11.(a) and a replacement Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date;
(iv) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement Date;
(v) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(vii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence that the Fees then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, 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 (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is and the effectiveness of the amendment and restatement of the Existing Credit Agreement, are subject to the satisfaction or waiver of the following conditions precedent:
: (a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
: (i) counterparts of this Agreement executed by each of the parties hereto;
; (ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower;
2.11.(a); (iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date;
Parent; (iv) an opinion of counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in the form set forth in Exhibit J; (v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and Party; (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement Date;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
; (vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Revolving Borrowing, the Notice of Term Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
; (viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
; (viiiix) an opinion a Compliance Certificate calculated as of counsel March 31, 2021 giving pro forma effect to the Loan Parties transactions contemplated by this Agreement; - 69 - LEGAL02/40527467v10 (other than any Accommodation Subsidiary that is not x) a Material Subsidiary), addressed to completed Disbursement Instruction Agreement effective as of the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
Agreement Date; (ixxi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
; (xii) a Disbursement Instruction evidence that all accrued and unpaid interest and fees owing by the Loan Parties under the Existing Credit Agreement effective as have been paid in full and that the principle amount of the Agreement Date;
Existing Term Loans and all interest, fees and other amounts owed with respect to the Existing Term Loans have been paid in full and that the agreement evidencing the Existing Term Loans has been terminated; and (xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
; (b) There since December 31, 2020, there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation event or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date condition that has had or could reasonably be expected to result in have a Material Adverse Effect;
; (c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
; (d) The the Parent, the Borrower Borrower, the other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (Ax) have a Material Adverse Effect, or (By) restrain or enjoin or impose materially burdensome conditions onenjoin, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
and (e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders shall have received, at least five (5) Business Days prior to the Agreement Date, all documentation and other information requested by the Administrative Agent or any Lender or required by regulatory authorities in order for the Administrative Agent and the Lenders to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, including the PATRIOT Act and any applicable “know your customer” rules and regulations.
; and (f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same, a Beneficial Ownership Certification in relation to it (or a certification that such Loan Party or such SubsidiaryBorrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations), in each case at least five (5) Business Days prior to the Effective Closing Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, this Agreement is subject to the satisfaction or waiver of the following conditions precedent:precedent (the date of the satisfaction or waiver of the conditions set forth in this Section 6.1, the “Effective Date”):
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) to the extent requested by each Lender, Revolving Notes of each Class and Terms Notes executed by the Borrower, payable to each applicable Lender of such Class (other than but excluding any Lender that has requested that it not to receive a NoteNotes) and complying with the terms of Section 2.11.
(a2.12(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date▇▇▇▇▇▇ ▇▇▇▇;
(iv) an opinion of (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters reasonably required by Administrative Agent and (B) ▇▇▇▇▇▇▇ LLP, Maryland counsel to the Borrower and ▇▇▇▇▇▇ ▇▇▇▇, addressed to the Administrative Agent and the Lenders and covering the matters reasonably required by the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party issued within thirty (30) days of the date hereof and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated on a pro forma basis (taking into account the Unencumbered Pool Properties as of counsel the Agreement Date) for the Borrower’s fiscal quarter ending December 31, 2017;
(x) a Disbursement Instruction Agreement effective as of the Effective Date;
(xi) intentionally omitted;
(xii) copies of all Material Contracts in existence on the Agreement Date not previously delivered to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ixxiii) evidence that the Fees then due and payable under Section 3.5., together with Fee Letter;
(xiv) all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the LendersLenders for which an invoice has been provided at least three (3) Business Days prior to the date hereof, including including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxv) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement extent not previously delivered to Administrative Agent, at Administrative Agent’s request, insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 (including, without limitation, both property and the use of the proceeds of the Loans to be funded on the Agreement Date)liability insurance) is in full force and effect;
(xixvi) [reserved]UCC, tax, judgment and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions indicating that there are no liens of record other than Permitted Liens;
(xiixvii) a Disbursement Instruction Agreement effective as complete listing of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoall Subsidiaries which are not Guarantors; and
(xivxviii) such other documentsevidence that all accrued and unpaid interest and fees owing by the Loan Parties under the Existing Credit Facilities have been paid, agreements and instruments as in full, for which an invoice has been provided at least three (3) Business Days prior to the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiariesdate hereof.
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsDecember 31, budgets2017, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No 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 (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, 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 (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Antiapplicable “know your customer” and anti-Money Laundering Lawsmoney laundering rules and regulations, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsUSA Patriot Act.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each applicable Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.11.(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors, if applicable, initially to be a party thereto;
(iv) an opinion of Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit H;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices the Notice of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate calculated on a pro forma basis for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Borrower’s fiscal quarter ending March 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2020;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) the Revolver First Amendment shall have closed, all signatures thereto shall have been released and such Revolver First Amendment shall be effective;
(xii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, Agent and the Lead Arrangers and any of the LendersArrangers, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been paid;
(xxiii) a Compliance Certificate calculated as Notice of the Effective Date (giving pro forma effect to the financing evidenced Borrowing executed by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No 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 (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, 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 (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with the requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.;
(fv) Each each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Agreement Date; and
(vi) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
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 satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class and Bid Rate Notes executed by the Borrower, payable to each applicable Lender of such Class (including any Designated Lender, if applicable), other than any Lender that has requested that it not receive a Note) , and complying with the terms of Section 2.11.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Parent and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit O;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate calculated on a pro forma basis for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Borrower’s fiscal quarter ending September 30, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2023;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower Parent and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower Parent 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 (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A1) have a Material Adverse Effect, or (B2) restrain or restrain, enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders shall have received, at least five (5) Business Days prior to the Agreement Date, all documentation and other information requested by the Administrative Agent or any Lender or required by regulatory authorities in order for the Administrative Agent and the Lenders to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, including the PATRIOT Act and any applicable “know your customer” rules and regulations.;
(fv) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same, a Beneficial Ownership Certification in relation to it (or a certification that such Loan Party or such SubsidiaryBorrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations), in each case at least five (5) Business Days prior to the Effective Agreement Date; and
(vi) there shall not have occurred or exist any material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Revolving Note) and complying with the terms of Section 2.112.10.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) an opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, and an opinion of ▇▇▇▇ ▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse EffectEffect and each state in which a Collateral Property owned by such Loan Party is located;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated as of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not Effective Date on a Material Subsidiary)pro forma basis for the Borrower’s fiscal quarter ending March 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2017;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) [intentionally omitted];
(xii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, the Borrower Letter executed by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No 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 (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, 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 (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements the USA Patriot Act (Title III of any AntiPub. L. 107-Money Laundering Laws56 (signed into law October 26, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.2001)); and
(fv) Each 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 Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDocuments.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement duly executed by each of the parties hereto;
(ii) Revolving Notes of each Class duly executed by the Borrower, payable to each applicable Lender of such Class (other than but excluding any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.11.
(a2.12(a) and a replacement Swingline Note executed by the Borrower;
(iiiA) the Guaranty Security Agreement duly executed by each of Borrower to be a party thereto, (B) all UCC financing statements in proper form for filing in the Parent applicable filing offices, and each Material Subsidiary existing as of (C) with respect to deposit accounts and securities accounts constituting Collateral, control agreements with respect thereto duly executed by the Effective Dateapplicable Borrower, depositary bank, and the Administrative Agent;
(iv) one or more opinions of counsel to the certificate or Borrower and such other parties as the Administrative Agent may request, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to the Administrative Agent;
(v) the articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party Borrower together with any amendments thereto (if any) certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateBorrower;
(vvi) a certificate of good standing (or certificate of similar meaning) existence with respect to each Loan Party the Borrower issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party South Carolina and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each the Secretary of State (and any state department of taxation, as applicable) of each other state in which such Loan Party the Borrower is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party Borrower with respect to each of the officers of such Loan Party Borrower authorized to execute and deliver the Loan Documents to which such Loan Party Borrower is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of requests for Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party Borrower of (A) the by-laws of such Loan PartyBorrower, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member member, manager or other necessary action taken by the such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Borrowing Base Certificate calculated as of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative AgentAgreement Date;
(ixx) a certificate from a Responsible Officer of each Borrower certifying that after giving pro forma effect to the transactions contemplated by this Agreement on the Effective Date that such Borrower and its Subsidiaries, on a consolidated basis, are Solvent;
(xi) a Compliance Certificate for the Borrower’s fiscal quarter ending March 31, 2023;
(xii) a closing certificate for the Borrower dated as of the Agreement Date;
(xiii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiv) copies of all Material Contracts and Specified Derivatives Contracts in existence on the Agreement Date;
(xv) the Fee Letter;
(xvi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxvii) a Compliance Certificate calculated with respect to each Borrowing Base Property identified on Schedule 4.1, each of the items referred to in Section 6.3 required to be delivered in connection with any Borrowing Base Property;
(xviii) UCC, tax, judgment and lien search reports with respect to each Borrower and, as reasonably required by Administrative Agent, each Borrowing Base Property in all necessary or appropriate jurisdictions indicating that there are no liens of record on such property other than Permitted Liens;
(xix) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xx) Phase I environmental assessment reports and any further environmental investigation required by the Administrative Agent for the initial Borrowing Base Properties;
(xxi) (A) copies of satisfactory reviewed consolidated financial statements for UHG and its Subsidiaries acceptable to Administrative Agent and the Lenders (B) pro forma consolidated financial statements for UHG and its Subsidiaries for the four-quarter period most recently ended prior to the Effective Date (for which financial statements are available giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded transactions occurring on the Agreement Date);
(xi) [reserved];
(xii) Effective Date and a Disbursement Instruction Agreement effective pro forma balance sheet of UHG and its Subsidiaries as of the Agreement Date;
Effective Date giving pro forma effect to the transactions occurring on the Effective Date and (xiiiC) evidence projections prepared by management of repayment in full balance sheets, income statements and cash flow statements of UHG and its Subsidiaries, which will be quarterly for the first year after the Effective Date and quarterly thereafter through the Maturity Date (x) that certain Term Loan Agreement dated as and which will not be inconsistent with information provided to the Administrative Agent prior to the delivery of May 3, 2016, by and among the Borrower, ’s commitment letter with the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoAdministrative Agent); and
(xivxxii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsMarch 31, budgets2023, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, 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 (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party the Borrower is a party or by which any of them or their respective properties is boundbound (including, except for such approvalswithout limitation, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect documents evidencing the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; andConvertible Debt);
(e) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any applicable “know your customer” and Anti-Money Laundering Laws, including, including without limitation, the PATRIOT Patriot Act and any applicable “know your customer” rules and regulations.the Beneficial Ownership Regulation; and
(f) Each 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 Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDocuments.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes, Term Notes of each Class and Bid Rate Notes executed by the Borrower, payable to each applicable Lender of such Class (other than including any Designated Lender, if applicable but excluding any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.11.
(a2.12.(a) and a replacement the Swingline Note executed by the Borrower;
(iii) an opinion of counsel to the Guaranty executed by each of Borrower and the Parent other Loan Parties, addressed to the Administrative Agent and each Material Subsidiary existing the Lenders and covering such matters as of the Effective DateAdministrative Agent may reasonably request;
(iv) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(v) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Revolving Borrowing, Notices of Conversion, Notices of ContinuationTerm Loan Borrowing, Notices of Swingline Borrowing, and to request issuance of requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(vii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion a Compliance Certificate calculated as of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not Effective Date on a Material Subsidiary)pro forma basis for the Borrower’s fiscal quarter ended September 30, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2014;
(ix) a Disbursement Instruction Agreement effective as of the Agreement Date;
(x) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxi) a Compliance Certificate calculated as of evidence that all indebtedness, liabilities or obligations owing by the Effective Date (giving pro forma effect to Loan Parties under the financing evidenced by this Existing Revolving Credit Agreement and the use of the proceeds of the Loans to be funded on the Existing Term Loan Agreement Date);
(xi) [reserved];shall have been paid in full and all Liens, if any, securing such indebtedness, liabilities or other obligations have been released; and
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, 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 (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction 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) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.8;
(iii) the Facility Guaranty executed by each of the Parent and each Material Subsidiary existing as of other Person that the Borrower elects to make a Guarantor on the Effective Date;
(iv) an opinion of counsel to the certificate or Loan Parties, addressed to the Agent, the Lenders, in form and substance reasonably satisfactory to the Agent;
(v) the articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) Party, or, in the case of the Parent only, certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParent;
(vvi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party or its constituent partners or members authorized to execute and deliver the Loan Documents to which such Loan Party is a partyparty and, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower Notices then authorized to deliver the Notice of Borrowing, Notices of Conversion, Continuation and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of CreditConversion;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a certificate from a Responsible Officer of counsel the Parent and the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects and (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed y) immediately after giving effect to the Administrative Agent and the Lenders and covering such customary matters as may be required transactions contemplated by the Administrative Agentthis Agreement, no Default or Event of Default shall exist;
(ixx) evidence that the Fees then due and payable under Section 3.5.3.6, together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(xxi) a Compliance Certificate calculated as of the Effective Date September 30, 2011 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Effective Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as the Notice of Borrowing from the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among Borrower for the Loans indicating how the proceeds thereof are to be made available to the Borrower, and if any of the ParentLoans initially are to be LIBOR Loans, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoInterest Periods therefore; and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and Parent or its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date since December 31, 2010 that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower 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 (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Parent, the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: Term Loan Agreement (Piedmont Office Realty Trust, Inc.)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is 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 of each Class (except for any Lender who has requested not to receive a promissory note), executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower;
(iii) the Facility Guaranty executed by each of the Parent and each Material Subsidiary existing as of other Person that the Borrower elects to make a Guarantor on the Effective Date;
(iv) an opinion of counsel to the certificate or Loan Parties, addressed to the Agent and the Lenders in form and substance reasonably satisfactory to the Agent;
(v) the articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) Party, or, in the case of the Parent only, certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParent;
(vvi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party or its constituent partners or members authorized to execute and deliver the Loan Documents to which such Loan Party is a partyparty and, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of ConversionBid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation, Continuation and Notices of Swingline Borrowing, 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 each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a certificate from a Responsible Officer of counsel the Parent and the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects and (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed y) immediately after giving effect to the Administrative Agent and the Lenders and covering such customary matters as may be required transactions contemplated by the Administrative Agentthis Agreement, no Default or Event of Default shall exist;
(ixx) evidence that the Fees then due and payable under Section 3.5.3.6, together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(xxi) a Compliance Certificate calculated as of the Effective Date June 30, 2018 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Effective Date);
(xixii) [reserved]evidence that, simultaneously with the execution of this Agreement, the Existing Revolving Credit Agreement has been paid in full and that all commitments thereunder have been irrevocably terminated;
(xiiA) a Disbursement Instruction Agreement effective all documentation and other information about the Loan Parties as of shall have been reasonably requested by the Agreement Date;
(xiii) evidence of repayment in full of (x) Agent or any Lender that certain Term Loan Agreement dated as of May 3it shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, 2016including, by and among the Borrowerwithout limitation, the ParentPatriot Act and (B) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Effective Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the financial institutions from time condition set forth in this clause (B) shall be deemed to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretobe satisfied); and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and Parent or its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date since December 31, 2017 that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower 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 (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Parent, the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: Revolving Credit Agreement (Piedmont Office Realty Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class and Bid Rate Notes executed by the Borrower, payable to each applicable Lender of such Class (including any Designated Lender, if applicable), other than any Lender that has requested that it not receive a Note) , and complying with the terms of Section 2.11.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Parent and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit O;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate calculated on a pro forma basis for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Borrower’s fiscal quarter ending December 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2017;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower Parent and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower Parent 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 (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A1) have a Material Adverse Effect, or (B2) restrain or restrain, enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The the Parent, the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements the USA Patriot Act (Title III of any AntiPub. L. 107-Money Laundering Laws56 (signed into law October 26, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.2001)); and
(fv) Each there shall not have occurred or exist any material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDocuments.
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 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 of each Class and Bid Rate Notes executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Noteor Designated Lender, if applicable) and complying with the terms applicable provisions of Section 2.11.
(a) , and a replacement the Swingline Note executed by the Borrower;
(iii) the The Guaranty executed by each of the Parent and each Material Subsidiary Guarantor existing as of the Effective Date;
(iv) An opinion of counsel to the certificate or Borrower and those Guarantor to which, together with the Borrower, at least 90.0% of Adjusted Asset Value is attributable, addressed to the Agent, the Lenders and the Swingline Lender, addressing the matters set forth in Exhibit M;
(v) The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each such other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each such Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each such Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Credit Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of ConversionSwingline Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation, Continuation and Notices of Swingline Borrowing, Conversion and to request the issuance of Letters of Credit;
(viiviii) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each such Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Credit Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence that the The Fees then due and payable under Section 3.53.6., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(x) a A Compliance Certificate calculated as of the Effective Date March 31, 2005 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Closing Date);
(xi) [reserved]Copies of the Intercreditor Agreement and the Pledge Agreement, together with all amendments and supplements thereto, certified by a officer of the Borrower to be true, correct and complete copies and in full force and effect;
(xii) a Disbursement Instruction Copies of each opinion letter delivered in connection with the Intercreditor Agreement effective as of and the Agreement Date;Pledge Agreement, and if requested by the Agent, reliance letters from the law firms delivering such opinions stating that the Agent and the Lenders may rely on such opinion letters; and
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Credit Documents to which it is a party;
(diii) The Parent, 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 (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin 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 Credit Documents to which it is a party; and
(eiv) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsCredit Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: Credit Agreement (St Joe Co)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance or continuation 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 Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the BorrowerBorrowers, payable to each Lender of (if requested by such Class (other than any Lender that has requested that it not receive a NoteLender) and complying with the terms applicable provisions of Section 2.112.12.
(a) and a replacement Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date[Reserved];
(iv) Opinions of counsel to the certificate or Loan Parties, addressed to the Agent and the Lenders and the Swingline Lender, addressing the matters set forth in Exhibit F;
(v) The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the BorrowerBorrower Representative, authorized to execute and deliver on behalf the officers of the Borrower Representative then authorized to deliver Notices of Borrowing, Notices of Continuation, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, Borrowing and to request the issuance of Letters of Credit;
(viiviii) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence Evidence that the Fees then due and payable under Section 3.53.6., together with all and any other feesFees, expenses and reimbursement reimbursable amounts due and payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative AgentEffective Date, for which invoices have been presented to the Borrowers at least 2 Business Days prior to the Effective Date, have been paid;
(x) a A Compliance Certificate to be calculated based on the financial statements for the period ending as of the Effective Date (June 30, 2015, after giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the any Loans to be funded on the Agreement Effective Date);
(xi) [reserved]evidence that all indebtedness, liabilities or obligations owing by the Loan Parties under both the Existing Credit Agreement and the Existing Term Loan Agreement (other than contingent obligations under the Existing Credit Agreement and the Existing Term Loan Agreement that by the express terms thereof survive termination of such agreements but for which no claim has been made) shall have been paid or will be paid, upon the consummation of the initial Credit Event, in full and the commitments thereunder terminated;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower Trust and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower Borrowers or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, the Borrower Trust 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 (i1) any Applicable Law or (ii2) any agreement, document or instrument to which any Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the any Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(e) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents; and
(ef) The Borrower Borrowers and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements the USA Patriot Act (Title III of any AntiPub. L. 107-Money Laundering Laws56 (signed into law October 26, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations2001)).
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Lepercq Corporate Income Fund L P)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Revolving Note) and complying with the terms of Section 2.112.10.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Dateother Guarantors initially to be a party thereto;
(iv) an opinion of counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit K;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate calculated on a pro forma basis for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative AgentParent’s most recently ended fiscal quarter;
(ixx) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxii) a Compliance an Unencumbered Asset Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;July 11, 2012; and
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent and the Lenders:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its the other Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The the Parent, 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 (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations., including without limitation, the Patriot Act; and
(fv) Each 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 Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDocuments.
Appears in 1 contract
Sources: Credit Agreement (Excel 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 of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Revolving Note) and complying with the terms of Section 2.11.
(a2.10.(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) an opinion of S▇▇▇▇▇▇▇ & Worcester LLP, and opinion of V▇▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit J;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence that the Fees then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving on a pro forma effect to basis for the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date)Borrower’s fiscal quarter ended March 31, 2010;
(xi) [reserved];
(xiix) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixi) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its 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 EffectFee Letter;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, 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 (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: Credit Agreement (CommonWealth REIT)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each applicable Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.8.(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) an opinion of Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit G;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party, or in the case of any Loan Party (other than the Borrower) that is a party to the Existing Credit Agreement and (y) by has not altered its organizational instrument since the date such Loan Party became a party to the Existing Credit Agreement, a certificate from the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of certifying that there have been no changes to the Agreement Dateorganizational instrument delivered by such Loan Party in connection with the Existing Credit Agreement;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party the Borrower issued as of a recent date by the Secretary of State of the its state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certification from the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party that each Loan Party is in good standing under the laws of its respective state of formation and is qualified to transact business in each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notice of Borrowing and Notices of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity entity, or in the case of any Loan Party that is a party to the Existing Credit Agreement and has not altered its by-laws, operating agreement, partnership agreement or other comparable document since the date such Loan Party became a party to the Existing Credit Agreement, a certificate from the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party certifying that there have been no changes to the by-laws, operating agreement, partnership agreement or other comparable document delivered by such Loan Party in connection with the Existing Credit Agreement; and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) an opinion a copy of counsel the compliance certificate for the Borrower’s fiscal quarter ending September 30, 2011, delivered pursuant to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative AgentExisting Credit Agreement;
(ixxi) the Notice of Borrowing from the Borrower for the Loans indicating how the proceeds thereof are to be made available to the Borrower, and if any of the Loans initially are to be LIBOR Loans, the Interest Period therefor;
(xii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, Agent and the Lead Arrangers and any of the LendersArrangers, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No 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 (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, 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 (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT USA Patriot Act and any applicable “know your customer” rules and regulations.; and
(fv) Each Loan Party there shall not have occurred or Subsidiary thereof exist any circumstance, change or condition in the loan syndication, financial or capital markets generally that qualifies as a “legal entity customer” under could reasonably be expected to materially impair the Beneficial Ownership Regulation shall have delivered to arrangement of the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Datecredit facility contemplated by this Agreement.
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 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) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a any Note) and complying with the terms of Section 2.11.
(a2.11.(a) and a replacement the Swingline Note executed by the Borrower;
(iii) [Intentionally deleted.]
(iv) an opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, and an opinion of ▇▇▇▇ ▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Guaranty executed by each of Borrower and the Parent other Loan Parties, addressed to the Administrative Agent and each Material Subsidiary existing the Lenders and covering such matters as of the Effective DateAdministrative Agent may reasonably request;
(ivv) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Revolving Borrowing, Notices of Conversion, Notices of ContinuationTerm Loan Borrowing, Notices of Swingline Borrowing, and to request issuance of requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Notice of counsel to the Term Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent Borrowing and the Lenders and covering such customary matters as may be required Notice of Revolving Borrowing executed by the Administrative AgentBorrower;
(ixx) a Compliance Certificate calculated as of the Effective Date on a pro forma basis for the Borrower’s fiscal quarter ended September 30, 2014;
(xi) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxiii) a Compliance Certificate calculated as of if requested by the Effective Date Administrative Agent, insurance certificates, or other evidence, providing that the insurance coverage required under Section 7.5. (giving pro forma effect to the financing evidenced by this Agreement including, without limitation, both property and the use of the proceeds of the Loans to be funded on the Agreement Date)liability insurance) is in full force and effect;
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixiv) evidence of repayment that all indebtedness, liabilities or obligations owing by the Loan Parties under the Existing Credit Agreements shall have been paid in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among concurrently with the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan first Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoEvent hereunder; and
(xivxv) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, 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 (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(e) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations., including without limitation, the Patriot Act; and
(f) Each 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 Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDocuments.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, initial Loans is subject to the satisfaction 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 of each Class executed by the BorrowerBorrowers, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.10;
(iii) the The Guaranty executed by each of the Parent and each Material Subsidiary Guarantor existing as of the Effective Date;
(iv) The Pledge Agreement executed by each Pledgor existing as of the certificate or Agreement Date;
(v) Opinions of counsel to the Loan Parties, addressed to the Agent and the Lenders, addressing the matters set forth in Exhibit F;
(vi) The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrowers and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the BorrowerBorrowers, authorized to execute and deliver on behalf the officers of the Borrower Representative then authorized to deliver Notices of Borrowing, Notices of Conversion, Continuation and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of CreditConversion;
(viiix) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence Evidence that the Fees then due and payable under Section 3.5.3.6, together with all and any other feesFees, expenses and reimbursement reimbursable amounts due and payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, Effective Date have been paid;
(xxi) a A Compliance Certificate calculated as of the Effective Date September 30, 2011 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the Revolving Credit Agreement and the use of the proceeds of the Loans to be funded on the Agreement Effective Date);
(xixii) [reserved]A letter from each applicable agent under the Existing Credit Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the treatment thereof;
(xiixiii) A Borrowing Base Certificate dated as of the Effective Date;
(xiv) Such due diligence (including lien searches and/or title reports) with respect to the Borrowing Base Assets Pool as the Agent on behalf of the Lenders may reasonably request;
(xv) Each document (including, without limitation, any UCC financing statement) and all actions required by any Loan Document or under Applicable Law or reasonably deemed necessary or appropriate by the Agent to be entered into, filed, registered or recorded or taken, in order to create in favor of the Agent, for the benefit of the Lenders, a Disbursement Instruction Agreement perfected first-priority Lien in the Collateral as of the Effective Date, shall have been entered into, filed, registered, recorded, taken or shall have been delivered to the Agent and be in proper form for filing, registration or recordation, as appropriate;
(xvi) A Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixvii) evidence of repayment Evidence that the Intercreditor Agreement shall have been duly executed and delivered by each party thereto and shall be in full of force and effect;
(xxviii) Evidence that certain Term Loan the Revolving Credit Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties theretoLoan Documents (as defined in the Revolving Credit Agreement) to be executed and delivered as a condition to the effectiveness of the Revolving Credit Agreement, as amended shall have been duly executed and delivered by that certain First Amendment to Term Loan Credit Agreement dated as each party thereto and shall be in full force and effect;
(xix) A Notice of April 26, 2017 and (y) that certain Term Loan Agreement dated as Borrowing requesting a borrowing of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoLoans in an aggregate principal amount of $50,000,000 or more; and
(xivxx) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower Trust and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower Borrowers or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower Trust 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 (i1) any Applicable Law or (ii2) any agreement, document or instrument to which any Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the any Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(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
(ev) The Borrower Borrowers and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements the USA Patriot Act (Title III of any AntiPub. L. 107-Money Laundering Laws56 (signed into law October 26, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations2001)).
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class (or replacement Notes, as the case may be) executed by the Borrower, payable to each applicable Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.12(a);
(iii) an opinion of outside counsel to the Guaranty executed by each of Borrower and the Parent other Loan Parties, addressed to the Administrative Agent and each Material Subsidiary existing the Lenders and covering such matters as of the Effective DateAdministrative Agent may request;
(iv) (A) copies of the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Person (or in the case of any Loan Party and (y) other than the Borrower, any other date acceptable to the Administrative Agent so long as such organizational documents are certified as of the Effective Date by the Secretary or Assistant Secretary (or other individual performing similar functions) of such the applicable Loan Party) or (B) a certification by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party as being a true, correct and complete copy thereof as of that such documents have not been amended or otherwise modified since the Revolving Credit Agreement Date;
(v) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse EffectPerson;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(vii) (A) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A1) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B2) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a partyparty or (B) with respect to the items in clause (A)(1) above, a certification by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party that such documents have not been amended or otherwise modified since the Revolving Credit Agreement Date;
(viii) a closing certificate substantially in form of Exhibit U, executed on behalf of the Borrower by an opinion authorized officer of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative AgentBorrower;
(ix) a Disbursement Instruction Agreement effective as of the Agreement Date;
(x) a pro forma Compliance Certificate prepared as of September 30, 2023;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Joint Lead Arrangers and any of the Lenders, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There (i) the Merger shall be consummated substantially concurrently with the Refinancing on the Effective Date in accordance in all material respects with the Merger Agreement and (ii) all Existing Term Loans that are not repaid or assumed as part of the Refinancing shall have been repaid in full;
(c) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders by or on behalf of the Borrower prior to the Agreement Date in connection with the transactions contemplated by this Agreement that has had or could reasonably be expected to result in a Material Adverse Effect;
(cd) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which is reasonably likely to be adversely determined, and, if adversely determined, could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(de) The Parent, 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 as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which which, or the failure to make, give or receive which, would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(ef) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender at least 2 Business Days prior to the Agreement Date in order to comply with requirements of any applicable “know your customer” and Anti-Money Laundering Laws, including, including without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.Patriot Act; and
(fg) Each the Borrower and each other Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case case, at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each applicable Lender of such Class (other than but excluding any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.12(a);
(iii) the The Subsidiary Guaranty and Hazardous Materials Indemnity Agreement executed by each of the Parent and each Material Subsidiary existing as of the Effective Dateapplicable parties thereto;
(iv) an opinion of counsel to the Borrower and such other Loan Parties as Administrative Agent may request, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of NAI-1502661059v7 70 such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices requests for Letters of ConversionCredit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Borrowing Base Certificate calculated as of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative AgentCutoff Date;
(ixx) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2017;
(xi) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxiv) a Compliance Certificate calculated as with respect to each Borrowing Base Property identified on Schedule 4.1, each of the Effective Date (giving pro forma effect items referred to the financing evidenced by this Agreement and the use of the proceeds of the Loans in Section 6.3 required to be funded on the Agreement Date)delivered in connection with any Borrowing Base Property;
(xixv) [reserved]UCC, tax, judgment and lien search reports with respect to the Borrower and each other Loan Party in all jurisdictions reasonably requested by the Administrative Agent indicating that there are no liens of record on such property other than Permitted Liens;
(xiixvi) a Disbursement Instruction Agreement effective as of insurance certificates, or other evidence, providing that the Agreement Date;
(xiii) evidence of repayment insurance coverage required under Section 8.5 is in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by force and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoeffect; and
(xivxvii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially NAI-1502661059v7 71 and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parentthe Borrower, the Borrower other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: Credit Agreement (LGI Homes, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class and Term Notes executed by the Borrower, payable to each Lender of such Class (other than any applicable Lender that has requested that it not receive a Note) Notes and the Swingline Note executed by the Borrower payable to the Swingline Lender to the extent that it has requested that it receive Notes, and, in each case, complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.12.(a);
(iii) the Guaranty executed by each of Subsidiary Guarantor, the Parent and each Material Subsidiary existing as of the Effective Dateother Required Guarantor;
(ivi) the Pledge Agreement, executed by each of the Parent, Borrower and each Subsidiary Guarantor party thereto from time to time and (ii) each other Security Document, executed by the parties thereto;
(v) an opinion letter of D▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan Parties addressed to the Administrative Agent and the Lenders in form and substance acceptable to the Administrative Agent;
(vi) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) an opinion of counsel original stock certificates or other certificates evidencing the certificated Equity Interests, as applicable, pledged pursuant to the Loan Parties Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;
(other than any Accommodation Subsidiary that is not a Material Subsidiaryxi) evidence of property, business interruption and liability insurance covering each Eligible Property, evidence of payment of all insurance premiums for the current policy year of each policy (with appropriate endorsements naming the Administrative Agent as lender’s loss payee on all policies for property hazard insurance and as additional insured on all policies for liability insurance), addressed in each case, in form and substance reasonably acceptable to the Administrative Agent Agent, and the Lenders and covering such customary matters as may be required if requested by the Administrative Agent, copies of such insurance policies;
(ixxii) any other documents reasonably requested thereby or as required by the terms of the Security Documents to perfect or evidence its security interest in the Collateral;
(xiii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 6.1.(b) through (f) and Section 6.2 have been satisfied;
(xiv) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending September 30, 2021;
(xv) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xvi) evidence that all indebtedness, liabilities or obligations owing by the Loan Parties under the Existing Credit Facilities shall have been paid in full and all Liens securing such indebtedness, liabilities or other obligations have been released;
(xvii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxviii) a Compliance Certificate calculated as copies of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded all Specified Derivatives Contracts in existence on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxix) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parentthe Borrower, the Borrower other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(e) The the initial public offering of the Equity Interests of the Parent, pursuant to a prospectus and Form S-1 registration statement provided to the Administrative Agent and the Lenders, prior to the date hereof (the “Equity Offering”), shall have been completed on terms and conditions acceptable to the Administrative Agent, including, without limitation, the Parent’s receipt of gross cash proceeds of the Equity Offering in an aggregate amount not less than $200,000,000, and the capital structure and corporate structure of the Parent and its Subsidiaries shall be reasonably acceptable to the Administrative Agent;
(f) the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any applicable “know your customer” and Anti-Money Laundering Laws, including, including without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.Patriot Act; and
(fg) Each each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as 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 reasonably satisfactory to the Administrative Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class and Term Notes executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.112.12.
(a) , and a replacement the Swingline Note executed by the Borrower;
(iii) the The Guaranty executed by each of the Parent and each Material Subsidiary other Guarantor existing as of the Effective Date;
(iv) A Transfer Authorizer Designation Form effective as of the certificate or Agreement Date;
(v) An opinion of counsel to the Loan Parties, addressed to the Agent and, the Lenders, addressing the matters set forth in Exhibit N;
(vi) The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified (x) as of a recent date by the Secretary of State (or comparable official) of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State (or comparable official) of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (or comparable official and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of ConversionSwingline Borrowings, Notices of Continuation, Continuation and Notices of Swingline Borrowing, Conversion and to request the issuance of Letters of Credit;
(viiix) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ax) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (By) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) an opinion Certificates of counsel insurance evidencing the existence of all insurance required to be maintained by Loan Parties pursuant to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Agreement, addressed to the Administrative Agent and the Lenders Agent shall be reasonably satisfied with the type and covering extent of such customary matters as may be required by the Administrative Agentcoverage;
(ixxi) evidence that the The Fees then due and payable under Section 3.53.6., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(xxii) a Compliance A Borrowing Base Certificate calculated as of the Effective Date Date;
(xiii) A Compliance Certificate calculated as of September 30, 2009 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Effective Date);
(xixiv) [reserved];
(xii) a Disbursement Instruction Agreement effective A certificate of the chief financial officer of the Borrower, including reasonably detailed supporting calculations, certifying that the aggregate principal amount of all Loans made on the Effective Date, together with the aggregate amount of all Letter of Credit Liabilities as of the Agreement Effective Date, does not exceed the lesser of:
(A) an amount equal to 60.0% of the Appraised Value of all Properties constituting Borrowing Base Properties as of the Effective Date;
(xiiiB) evidence of repayment in full of an amount equal to (x) that certain Term Loan Agreement dated the Borrowing Base NOI of all Properties constituting Borrowing Base Properties as of May 3, 2016, the Effective Date divided by and among (y)(A) the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and Applicable Mortgage Constant times (yB) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto1.5; and
(xivC) such an amount which, if deemed to be the denominator of Debt Yield, would produce a Debt Yield equal to 14.0%.
(xv) All of the items required to be delivered under Sections 4.1. and 4.2. with respect to each Property identified on Schedule 4.1.; and
(xvi) Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its the other Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower 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 (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower and each There shall not have occurred or exist any other Loan Party shall have provided material adverse change or material disruption in the loan syndication, financial, banking or capital markets that, in the reasonable judgment of the Joint Lead Arrangers, has impaired or could reasonably be expected to impair, the syndication of the Loans, either (i) occurring on or after August 6, 2009, or (ii) occurring prior to August 6, 2009 but becoming known to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering LawsJoint Lead Arrangers after August 6, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations2009.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: Credit Agreement (U-Store-It Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent Guarantor and by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors identified in Schedule 1.1.;
(iv) an opinion of ▇▇▇▇▇ Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument document (if any) of each Loan Party certified (x) as of a recent date after the IPO Date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date after the IPO Date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion evidence of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be insurance required by the Administrative Agentunder Section 8.5.;
(ixx) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate calculated on a pro forma basis for the Parent Guarantor as of the IPO Date, after giving effect to the receipt of the proceeds of the IPO, the repayment of Indebtedness and related transactions;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There The IPO shall have been completed and the proceeds thereof shall have been used, among other things, to repay Indebtedness of the Parent Guarantor or its Subsidiaries of not less than $400,000,000, and the Administrative Agent shall have received satisfactory written evidence thereof; and
(c) The Parent Guarantor’s common shares shall be traded on the New York Stock Exchange, and the Administrative Agent shall have received satisfactory written evidence thereof; and
(d) In the good faith and reasonable judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No 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 (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, 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 as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower and each other Loan Party the Lenders shall have received and verified all information provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” for under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five USA Patriot Act of 2001 (5) Business Days prior to the Effective DatePublic Law 107-56).
Appears in 1 contract
Sources: Credit Agreement (RLJ Lodging Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each requesting Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.112.12.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Dateintentionally omitted;
(iv) intentionally omitted;
(v) an opinion of ▇▇▇▇▇ Lovells US LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters reasonably requested by the Administrative Agent;
(vi) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence that the Fees then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving on a pro forma effect to basis for the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date)Parent’s fiscal year ended December 31, 2020;
(xi) [reserved]intentionally omitted;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) intentionally omitted;
(xiv) intentionally omitted;
(xv) the Fee Letter;
(xvi) evidence that the Fees, if any, then due and payable under Section 3.5., together with, to the extent a reasonably detailed invoice thereof has been presented to the Borrower prior to the Effective Date, all other reasonable and documented out-of-pocket fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of repayment in full of (x) that certain Term Loan Agreement dated as of May 3the Lenders, 2016, by and among the Borrowerincluding without limitation, the Parentreasonable and documented out-of-pocket fees and expenses of counsel to the Administrative Agent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretohave been paid; and
(xivxvii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There since December 31, 2020, there shall not have occurred any material adverse condition or become known to material adverse change in or affecting, or the Administrative Agent occurrence of any circumstance or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date condition that has had or could reasonably be expected to result in a material adverse change in, or have a Material Adverse EffectEffect on, the business, assets, liabilities, condition (financial or otherwise), or operations of the Parent, the Borrower and their Subsidiaries;
(c) No 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 (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or Borrower, any other Loan Party or the Parent to fulfill its obligations under the Loan Documents to which it is a party;
(d) The the Parent, the Borrower Borrower, the other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(ei) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations.
, including without limitation, the Patriot Act, and (fii) Each Loan Party or Subsidiary thereof at least five (5) Business Days prior to the Agreement Date, the Borrower shall deliver, on behalf of itself and any Guarantor that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the sameRegulation, a Beneficial Ownership Certification in relation to itself and to such Loan Party or Guarantor, to each Lender that so requests such Subsidiary, in each case at least five (5) Business Days prior to the Effective Datea Beneficial Ownership Certification.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the reasonable satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties heretohereto (which, subject to Section 13.13(b), may include any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page that such party has signed a counterpart of this Agreement or such Loan Document);
(ii) to the extent requested by the Lenders, Notes of each Class executed made by the Borrower, payable to each applicable Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.10(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) an opinion of each of (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan Parties and (B) ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Maryland counsel to Spirit REIT, addressed to the Administrative Agent and the Lenders and covering the matters reasonably required by the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State (or equivalent Governmental Authority) of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effectdate;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate calculated on a pro forma basis for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Borrower’s fiscal quarter ending June 30, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2022;
(ixx) a completed Borrower Administrative Questionnaire effective as of the Agreement Date;
(xi) [reserved];
(xii) copies of all Material Contracts and confirmations relating to Specified Derivatives Contracts in existence on the Agreement Date;
(xiii) the Fee Letter;
(xiv) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxv) such UCC, tax, judgment and lien search reports with respect to each Loan Party in its jurisdiction of organization indicating that there are no liens of record other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiariesthan Permitted Liens.
(b) There there shall not have occurred or become known to any material adverse change in the Administrative Agent or any of the Lenders any event, condition, situation or status Borrower’s financial condition since the date of the information contained in most recent quarterly financial statement filed with the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders SEC on Form 10-K prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effectdate of this Agreement;
(c) No 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 (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parentthe Borrower, the Borrower other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(ei) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations.
, including the Patriot Act and (fii) Each Loan Party or Subsidiary thereof that to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered Regulation, at least five days prior to the Administrative AgentEffective Date, and any Lender requesting that has requested, in a written notice to the sameBorrower at least 10 days prior to the Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Loan Party or Beneficial Ownership Certification (provided that, upon the execution and delivery by such SubsidiaryLender of its signature page to this Agreement, the condition set forth in each case at least five this clause (5ii) Business Days prior shall be deemed to the Effective Datebe satisfied).
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of CreditLoan, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any applicable Lender that has requested that it not receive a Note) and Notes, complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.12.(a);
(iii) the Guaranty executed by each of Subsidiary Guarantor, the Parent and each Material Subsidiary existing as of the Effective Dateother Required Guarantor;
(iv) [reserved];
(v) an opinion letter of ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇ LLP (with respect to Maryland law matters), counsel to the Borrower and the other Loan Parties addressed to the Administrative Agent and the Lenders in form and substance acceptable to the Administrative Agent;
(vi) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) an opinion [reserved];
(xi) evidence of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)property, addressed business interruption and liability insurance covering each Eligible Property in form and substance reasonably acceptable to the Administrative Agent Agent, and the Lenders and covering such customary matters as may be required if requested by the Administrative Agent, copies of such insurance policies;
(ixxii) [reserved];
(xiii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 6.1.(b) through (d) and Section 6.2 have been satisfied;
(xiv) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2023;
(xv) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xvi) a copy of an amendment to the WF Term Loan Agreement, duly executed by the parties thereto and effective on or prior to the Effective Date, and evidence that all conditions precedent thereto have been satisfied;
(xvii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxviii) a Compliance Certificate calculated as copies of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded all Specified Derivatives Contracts in existence on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxix) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parentthe Borrower, the Borrower other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The the Borrower and each other Loan Party shall have provided delivered, on behalf of itself and any Loan Party, to each Lender that so requests a Beneficial Ownership Certification at least five (5) days prior to the Administrative Agent Effective Date, and the Lenders the documentation and other all information reasonably requested by the Administrative Agent and each Lender in order to comply with requirements of any applicable “know your customer” and Anti-Money Laundering Laws, including, including without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsPatriot Act.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class and Bid Rate Notes executed by the Borrower, payable to each applicable Lender of such Class (other than including any Lender that has requested that it not receive a NoteDesignated Lender, if applicable) and complying with the terms of Section 2.11.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) an opinion of Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit O;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2011;
(x) a Transfer Authorizer Designation Form effective as of counsel to the Agreement Date;
(xi) evidence that all indebtedness, liabilities or obligations owing by the Loan Parties (under the Existing Credit Agreement shall be paid in full on the Agreement Date and any Liens securing such indebtedness, liabilities or other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may obligations shall then be required by the Administrative Agentreleased;
(ixxii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, Agent and the Lead Arrangers and any of the LendersArrangers, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No 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 (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, 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 (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements the USA Patriot Act (Title III of any AntiPub. L. 107-Money Laundering Laws56 (signed into law October 26, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.2001)); and
(fv) Each 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 Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDocuments.
Appears in 1 contract
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 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) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.10.(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors, if any, initially required to be a party thereto pursuant to Section 7.13.;
(iv) an opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, and an opinion of ▇▇▇▇ ▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices the Notice of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated as of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not Effective Date on a Material Subsidiary)pro forma basis for the Borrower’s fiscal quarter ending June 30, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2015;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) the Notice of Borrowing from the Borrower requesting the Loans;
(xii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, the Borrower Letter executed by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, 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 (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (Ax) have a Material Adverse Effect, or (By) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(e) there shall not have occurred or exist any material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents; and
(ef) The the Borrower and each other Loan Party shall have provided to all information requested in writing by the Administrative Agent and each Lender at least five Business Days prior to the Lenders the documentation and other information requested by the Administrative Agent Effective Date in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: Term Loan Agreement (Senior Housing Properties Trust)
Initial Conditions Precedent. The effectiveness of this Agreement and obligation of the Lenders to effect make (or permit be deemed to make) the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction 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) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.8;
(iii) the Facility Guaranty executed by each of the Parent and each Material Subsidiary existing as of other Person that the Borrower elects to make a Guarantor on the Effective Date;
(iv) an opinion of counsel to the certificate or Loan Parties, addressed to the Agent, the Lenders, in form and substance reasonably satisfactory to the Agent;
(v) the articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) Party, or, in the case of the Parent only, certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParent;
(vvi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party or its constituent partners or members authorized to execute and deliver the Loan Documents to which such Loan Party is a partyparty and, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower Notices then authorized to deliver the Notice of Borrowing, Notices of Conversion, Continuation and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of CreditConversion;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a certificate from a Responsible Officer of counsel the Parent and the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects and (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed y) immediately after giving effect to the Administrative Agent and the Lenders and covering such customary matters as may be required transactions contemplated by the Administrative Agentthis Agreement, no Default or Event of Default shall exist;
(ixx) evidence that the Fees then due and payable under Section 3.5.3.6, together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(xxi) a Compliance Certificate calculated as of the Effective Date June 30, 2018 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Effective Date);
(xixii) [reserved];
(xiiA) a Disbursement Instruction Agreement effective all documentation and other information about the Loan Parties as of shall have been reasonably requested by the Agreement Date;
(xiii) evidence of repayment in full of (x) Agent or any Lender that certain Term Loan Agreement dated as of May 3it shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, 2016including, by and among the Borrowerwithout limitation, the ParentPatriot Act and (B) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Effective Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the financial institutions from time condition set forth in this clause (B) shall be deemed to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretobe satisfied); and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and Parent or its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date since December 31, 2017 that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower 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 (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Parent, the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: Term Loan Agreement (Piedmont Office Realty Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Revolving Note) and complying with the terms of Section 2.11.
(a2.10.(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) an opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, and an opinion of ▇▇▇▇ ▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated as of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not Effective Date on a Material Subsidiary)pro forma basis for the Borrower’s fiscal quarter ending March 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2017;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) [intentionally omitted];
(xii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, the Borrower Letter executed by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No 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 (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, 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 (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements the USA Patriot Act (Title III of any AntiPub. L. 107-Money Laundering Laws56 (signed into law October 26, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.2001)); and
(fv) Each 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 Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDocuments.
Appears in 1 contract
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 of this Agreement executed by each of the parties hereto;
(iib) Notes of each Class executed by the Borrower, payable to each applicable Lender and complying with the terms of such Class (other than Section 2.6, but excluding any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the BorrowerNotes;
(iiic) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(ivd) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may request, addressed to the Administrative Agent and the Lenders;
(e) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vf) 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 within thirty (30) days of the date hereof, and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vig) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party Person authorized to execute and deliver the Loan Documents to which such Loan Party Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of CreditLoan Interest Rate Request Forms in the forms attached hereto as Exhibit C;
(viih) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiii) a Compliance Certificate and an opinion of counsel to Unencumbered Asset Value Certificate calculated on an estimated basis using financial information not yet finalized for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Borrower’s fiscal quarter ending September 30, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2014;
(ixj) evidence 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 Fees then Agreement Date, and fully executed and completed Borrower Authorization Forms effective as of the Agreement Date;
(l) a complete listing of all Subsidiaries which are Non-Guarantor Entities;
(m) Borrower shall have paid to Administrative Agent, for the benefit of Lenders, all interest and other fees due and payable under Section 3.5.the Existing Credit Agreement, together with prorated to the Effective Date;
(n) Lenders, as applicable, shall have completed whatever balancing transfers amongst themselves as are necessary in order to result in each Lender having the outstanding balances referenced on Schedule 1.4 attached hereto;
(o) all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivp) such other documents, agreements agreements, and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, 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 (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: Loan Agreement (Equity One, Inc.)
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, this Agreement is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, a Note payable to each Lender of such Class not party to the Third Amended Credit Agreement and a replacement Note payable to each Lender whose Commitment is being increased pursuant to this Agreement (other than excluding, in each case, any Lender that has requested that it not receive a Note) and ), in each case complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.13(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(ivA) an opinion of ▇▇▇▇▇▇▇▇▇▇ PC, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of organization or formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DatePerson;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party Person is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party Person authorized to execute and deliver the Loan Documents to which such Loan Party Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan PartyPerson, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Parent Guarantor’s fiscal quarter ended December 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2014;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxii) a Compliance Certificate calculated evidence reasonably satisfactory to the Administrative Agent that (A) all accrued and unpaid interest, fees and expenses under the Third Amended Credit Agreement shall have been fully paid, the commitments thereunder shall be amended and restated as of the Effective Date date hereof as set forth on Schedule 1 hereto, and any and all Liens thereunder have been terminated and released and (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xiB) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment each Departing Lender shall have received payment in full of (x) that certain Term Loan Agreement dated as all of May 3, 2016, by and among the Borrower, “Obligations” under the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Third Amended Credit Agreement dated (other than obligations to pay fees and expenses with respect to which the Borrower has not received an invoice, contingent indemnity obligations and other contingent obligations owing to it under the “Loan Documents” as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among defined in the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoThird Amended Credit Agreement); and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There no Default or Event of Default shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effectexist;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, 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 (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations., including without limitation, the Patriot Act; and
(fd) Each The representations and warranties made or deemed made by the Borrower and each other Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under in this Agreement and in the Beneficial Ownership Regulation other Loan Documents delivered pursuant to Section 6.1 shall have delivered to the Administrative Agent, be true and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Datecorrect.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Revolving Note) and complying with the terms of Section 2.112.10.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Dateother Guarantors;
(iv) an opinion of counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit J;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated as of counsel March 31, 2011 giving pro forma effect to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)transactions contemplated by this Agreement, addressed to including termination of the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative AgentExisting Credit Agreement;
(ixx) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent:
(i) since December 31, 2010, there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation event or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date condition that has had or could reasonably be expected to result in have a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The the Parent, the Borrower Borrower, the other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions onenjoin, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The the Parent, the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements the USA Patriot Act (Title III of any AntiPub. L. 107-Money Laundering Laws56 (signed into law October 26, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations2001)).
(fc) Each Loan Party The Administrative Agent shall give notice (which may be by electronic mail or Subsidiary thereof other similar means of electronic communication) to the Borrower and the Lenders promptly upon is determination that qualifies as a “legal entity customer” under all of the Beneficial Ownership Regulation conditions precedent set forth in this Section shall have delivered to been fulfilled or waived by all of the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateLenders.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any applicable Lender that has requested that it not receive a Note) Notes prior to the Effective Date, and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.12.(a);
(iii) an opinion of counsel to the Guaranty executed by each of Borrower and the Parent other Loan Parties, addressed to the Administrative Agent and each Material Subsidiary existing the Lenders and covering such matters as of the Effective Date;Administrative Agent may reasonably request; Execution Version
(iv) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(v) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(vii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the reasonable and documented out‑of‑pocket fees and expenses of counsel to the Administrative Agent, have been paid; and
(ix) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2016;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (ystatements described in Section 6.1.(j) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretohereof; and
(xivxi) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially Execution Version and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parentthe Borrower, the Borrower other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which which, or the failure to make, give or receive which, would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Sources: Term Loan Agreement (Washington Real Estate Investment Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is and the effectiveness of the amendment, restatement and consolidation of the Existing Credit Facilities to be effect by this Agreement, are subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each requesting Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) 2.11.(a), and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Dateother Guarantors initially to be a party thereto;
(iv) an opinion of legal counsel to the Borrower and the other Loan Parties, reasonably satisfactory to the Administrative Agent, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Revolving Borrowing, Notices of Conversion, Notices of ContinuationTerm Loan Borrowing, Notices of Swingline Borrowing, and to request issuance of requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated on a pro forma basis for the Parent’s fiscal quarter ending December 31, 2013, giving pro forma effect to the making of counsel any Loan to be made on the Effective Date;
(x) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) evidence that all accrued and unpaid interest and fees owing by the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to under the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative AgentExisting Credit Facilities have been paid in full;
(ixxii) a Notice of Term Loan Borrowing executed by the Borrower with respect to the 5-Year Term Loans to be made on the Effective Date;
(xiii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxiv) a Compliance Certificate calculated as of if required by the Effective Date Administrative Agent, insurance certificates, or other evidence, providing that the insurance coverage required under Section 7.5. (giving pro forma effect to the financing evidenced by this Agreement including, without limitation, both property and the use of the proceeds of the Loans to be funded on the Agreement Date)liability insurance) is in full force and effect;
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxv) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, Agent may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in have a Material Adverse Effect;
(c) No 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 (iA) result in a Material Adverse Effect Effect, other than as previously disclosed to Administrative Agent and the Lenders in writing and approved by the Administrative Agent and Lenders in writing, or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The the Parent, the Borrower and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, bound except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or 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; and
(e) The the Parent, the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
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Initial Conditions Precedent. The effectiveness of this Agreement and obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties heretohereto (which, subject to Section 12.14, may include any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page);
(ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.8;
(iii) the Facility Guaranty executed by each of the Parent and each Material Subsidiary existing as of other Person that the Borrower elects to make a Guarantor on the Effective Date;
(iv) an opinion of counsel to the certificate or Loan Parties, addressed to the Agent, the Lenders, in form and substance reasonably satisfactory to the Agent;
(v) the articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) Party, or, in the case of the Parent only, certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParent;
(vvi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party or its constituent partners or members authorized to execute and deliver the Loan Documents to which such Loan Party is a partyparty and, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Conversion, Continuation and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of CreditConversion;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a certificate from a Responsible Officer of counsel the Parent and the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects and (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed y) immediately after giving effect to the Administrative Agent and the Lenders and covering such customary matters as may be required transactions contemplated by the Administrative Agentthis Agreement, no Default or Event of Default shall exist;
(ixx) evidence that the Fees then due and payable under Section 3.5.3.6, together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(xxi) a Compliance Certificate calculated as of March 31, 2022 (and, if any Loans are funded on the Effective Date (giving Date, updated to give pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the any Loans to be funded on the Agreement Effective Date);
(xixii) [reserved];
(xiiA) a Disbursement Instruction Agreement effective all documentation and other information about the Loan Parties as of shall have been reasonably requested by the Agreement Date;
(xiii) evidence of repayment in full of (x) Agent or any Lender that certain Term Loan Agreement dated as of May 3it shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, 2016including, by and among the Borrowerwithout limitation, the ParentPatriot Act and (B) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Effective Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the financial institutions from time condition set forth in this clause (B) shall be deemed to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretobe satisfied); and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and Parent or its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date since December 31, 2021 that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower 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 (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Parent, the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
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Sources: Term Loan Agreement (Piedmont Office Realty Trust, Inc.)