Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent: (a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent: (i) Counterparts of this Agreement executed by each of the parties hereto; (ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9; (iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel; (iv) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification; (v) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect; (vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit; (vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party; (viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date; (ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date; (x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof; (xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and (xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request. (b) In the good faith judgment of the Agent and the Lenders: (i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect; (ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; (iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and (iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 3 contracts
Sources: Credit Agreement (Epr Properties), Credit Agreement (Epr Properties), Credit Agreement (Epr Properties)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
: (a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
: (i) Counterparts of this Agreement executed by each of the parties hereto;
; (ii) Revolving Notes executed by the Borrower, Borrowers payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
2.11, Competitive Advance Notes executed by the Borrowers payable to each Lender, and the Swingline Note executed by the Borrowers payable to the Agent (which Notes shall be promptly forwarded by the Agent to the applicable Lender); (iii) An The Guaranty executed by each Guarantor existing as of the Effective Date; (iv) A favorable opinion of counsel to the BorrowerLoan Parties, addressed to the Agent Agent, the Lenders and the LendersSwingline Lender, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified addressing such matters as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
Agent may require; (v) A certificate The Governing Documents of good standing each Borrower, each Guarantor and each general partner, managing member (or certificate Person performing similar functions) of similar meaning with respect to the Borrower issued such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person; (vi) A good standing certificate with respect to each Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
organized; (vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect each Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each the officers or other representatives of the officers of the Borrower Borrowers then authorized to deliver Notices of Borrowing, Notices of Continuation and Swingline Borrowings, Notices of Continuation, Notices of Conversion and Competitive Bid Requests and to request the issuance of Letters of Credit;
; (viiviii) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrowers, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
; (viiiix) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
; (x) A letter from the agents under the Existing Agreement providing information regarding the payment in full Compliance Certificate calculated as of amounts outstanding thereunder September 30, 2002; and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
; and (b) In the good faith judgment of the Agent and the Lenders:
: (i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning GBP, General Partner, the Borrower Borrowers, the Subsidiaries and its Subsidiaries the other Loan Parties delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
; (ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower Borrowers or any other Loan Party to fulfill its the respective obligations under the Loan Documents to which it is a party;
; (iii) The Borrower Parent, GBP and its the Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower Borrowers or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower Borrowers or any other Loan Party to fulfill its their respective obligations under the Loan Documents to which it is a party; and
and (iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Gables Residential Trust), Credit Agreement (Gables Realty Limited Partnership)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, Borrower payable to each Lender (if other than any Lender that has requested by such Lendernot to receive a Revolving Note) and complying with the applicable provisions of Section 2.92.10, and the Swingline Note executed by the Borrower payable to the Agent (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyfavorable opinion of counsel to the Obligors, certified addressed to the Agent, the Lenders and the Swingline Lender, addressing such matters as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationAgent may reasonably require;
(v) A certificate The Governing Documents of good standing the Borrower, each Guarantor and each general partner, managing member (or certificate Person performing similar functions) of similar meaning with respect to the Borrower issued such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vi) A good standing certificate with respect to the Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Unencumbered Assets owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation Continuation, Notices of Conversion and Notices of Conversion Swingline Borrowings and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiiix) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixx) A pro forma Compliance Certificate, dated as of the Effective Date, based on financial results Certificate calculated as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof2013;
(xi) Such due diligence with respect A certificate signed by a Responsible Officer of the Borrower certifying that each Property to be treated as an Unencumbered Asset on the Effective Date satisfies all of the requirements for an Unencumbered Asset set forth in the definition thereof;
(xii) The documentation and other information requested by any Lender that is required by regulatory authorities under the applicable “know your customer” rules and regulations;
(xiii) A copy of the Term Loan Agreement in which the covenants thereunder are conformed to the Unencumbered Pool as covenants set forth herein, in form and substance reasonably satisfactory to the Agent may and the Borrower;
(xiv) Evidence reasonably requiresatisfactory to the Agent that all guaranties provided by the Guarantors listed on Schedule 12.20 have been released under the Borrower’s Senior Notes due 2018 and under all other existing Unsecured Debt of the Borrower and the other Obligors in excess of $35,000,000; and
(xiixv) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsJune 30, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date 2013 that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(iii) The Borrower Borrower, the other Obligors and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Columbia Property Trust, Inc.), Credit Agreement (Columbia Property Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each Lender (if requested by such Lender) Borrower and complying with the applicable provisions of Section 2.92.11., and the Swingline Note executed by the Borrower;
(iii) The Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) An opinion of counsel to the BorrowerLoan Parties, addressed to the Agent and the Lenders, in substantially the form and substance acceptable to Agent’s counselset forth in Exhibit M;
(ivv) A copy, The declaration of trust of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative state of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationits incorporation;
(vvi) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower its incorporation and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary or Assistant Secretary of the Borrower, of (i) the bylaws of the Borrower and (ii) all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(ix) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the state of formation of such Guarantor;
(x) A certificate of good standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by (or other comparable evidence from) the Secretary of State of the state of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by (or other comparable evidence from) each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(xi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the Borrower officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and entity, (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a partyparty and (iii) the articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of such Guarantor;
(viiixiii) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxiv) A Compliance Certificate, dated Certificate calculated as of the Effective DateMarch 31, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require2006; and
(xiixv) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Federal Realty Investment Trust), Credit Agreement (Federal Realty Investment Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.10., and the Swingline Note executed by the Borrower;
(iii) The Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) An opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, counsel to the BorrowerLoan Parties, and an opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel to the Loan Parties, addressed to the Agent and the Lenders, in form Lenders and substance acceptable to Agent’s counselcovering such matters as are customary for financings of the type contemplated by the Loan Documents and such other matters as the Agent may reasonably request;
(ivv) A copy, The declaration of trust of the Borrower certified as of a recent date by the appropriate officer Department of Assessments and Taxation of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationMaryland;
(vvi) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary Department of Assessments and Taxation of the State of the state of formation of the Borrower Maryland and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary or Assistant Secretary of the Borrower, of all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(ix) The Governing Documents of each Guarantor certified as of a recent date by the Secretary of State of the State of formation of such Guarantor;
(x) A certificate of good standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by the Secretary of State of the State of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(xi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the Borrower officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) A copy of (y) all Operating Agreements, all Ancillary Agreements and the Advisory Agreement, in each case certified as true, correct and complete by the chief operating officer or chief financial officer of the Borrower, and (z) an Operating Agreement Abstract with respect to each Operating Agreement for the Unencumbered Hotels;
(xiv) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixxv) A Compliance Certificate, dated Certificate calculated as of the Effective DateDecember 31, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require2004; and
(xiixvi) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Hospitality Properties Trust), Credit Agreement (Hospitality Properties Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions terms of Section 2.92.10.
(a) and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by each of counsel to the Borrower, addressed to Guarantors existing as of the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copy, The articles of incorporation of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationMaryland;
(v) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower its incorporation and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies, certified by the Secretary or Assistant Secretary of the Borrower, of (i) the bylaws of the Borrower and (ii) all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(viii) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the state of formation of such Guarantor;
(ix) A certificate of good standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by the Secretary of State of the state of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(x) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xi) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixii) An opinion of counsel to the Loan Parties addressed to the Administrative Agent, the Lenders and the Swingline Lender, addressing the matters set forth in Exhibit J;
(xiii) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Administrative Agent, the Titled Agents and the Lenders on or prior to the Effective Date, including without limitation, the fees and expenses of counsel to the Administrative Agent;
(ixxiv) A Compliance Certificate, dated as of the Effective Date, based on financial results Certificate calculated as of June 30, 2021 and after 2009 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xxv) A letter from a Transfer Authorizer Designation Form effective as of the agents Agreement Date;
(xvi) evidence that all indebtedness, liabilities or obligations (other than obligations in respect of Existing Letters of Credit) owing by the Loan Parties under the Existing Credit Agreement providing information regarding the payment shall have been paid in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requireall Liens, if any, securing such indebtedness, liabilities or other obligations have been released; and
(xiixvii) Such such other documents, agreements documents and instruments as the Agent on behalf of Administrative Agent, or any Lender through the Lenders Administrative Agent, may reasonably request.; and
(b) In the good faith judgment of the Agent and the LendersAdministrative Agent:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (National Retail Properties, Inc.), Credit Agreement (National Retail Properties, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions terms of Section 2.92.10.
(a) and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by each of counsel to the Borrower, addressed to Guarantors existing as of the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copy, The articles of incorporation of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationMaryland;
(v) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower its incorporation and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies, certified by the Secretary or Assistant Secretary of the Borrower, of (i) the bylaws of the Borrower and (ii) all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(viii) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the state of formation of such Guarantor;
(ix) A certificate of good standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by the Secretary of State of the state of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(x) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xi) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixii) An opinion of counsel to the Loan Parties addressed to the Administrative Agent, the Lenders and the Swingline Lender, addressing the matters set forth in Exhibit J;
(xiii) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Administrative Agent, the Titled Agents and the Lenders on or prior to the Effective Date, including without limitation, the fees and expenses of counsel to the Administrative Agent;
(ixxiv) A Compliance Certificate, dated Certificate calculated as of the Effective Date, based on financial results as of June March 30, 2021 and after 2011 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xxv) A letter from a Transfer Authorizer Designation Form effective as of the agents Agreement Date;
(xvi) evidence that all indebtedness, liabilities or obligations (other than obligations in respect of Existing Letters of Credit) owing by the Loan Parties under the Existing Credit Agreement providing information regarding the payment shall have been paid in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requireall Liens, if any, securing such indebtedness, liabilities or other obligations have been released; and
(xiixvii) Such such other documents, agreements documents and instruments as the Agent on behalf of Administrative Agent, or any Lender through the Lenders Administrative Agent, may reasonably request.; and
(b) In the good faith judgment of the Agent and the LendersAdministrative Agent:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iv) The Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)); and
(ivv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (National Retail Properties, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of Loans on the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Effective Date is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) Borrower and complying with the applicable provisions of Section 2.92.8. executed by the Borrower;
(iii) The Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) An opinion of counsel to the BorrowerLoan Parties, addressed to the Agent and the Lenders, in substantially the form and substance acceptable to Agent’s counselset forth in Exhibit F;
(ivv) A copy, The declaration of trust of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative state of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationits incorporation;
(vvi) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower its incorporation and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices the Notice of Borrowing, Borrowing and Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditConversion;
(viiviii) Copies Copies, certified by the Secretary or Assistant Secretary of the Borrower, of (i) the bylaws of the Borrower and (ii) all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(ix) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the state of formation of such Guarantor;
(x) A certificate of good standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by (or other comparable evidence from) the Secretary of State of the state of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by (or other comparable evidence from) each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(xi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the Borrower officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and entity, (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a partyparty and (iii) the articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of such Guarantor;
(viiixiii) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxiv) A Compliance Certificate, dated Certificate calculated as of the Effective Date, based on financial results as of June September 30, 2021 and after 2007 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xxv) A letter from the agents under the Existing Agreement providing information regarding the payment in full The Notice of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requireBorrowing; and
(xiixvi) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents; and
(c) No Default or Event of Default shall exist as of the date of the making of such Loans or would exist immediately after giving effect thereto; and
(d) The representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party shall be true and correct on and as of the date of the making of the Loans with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date) and except for changes in factual circumstances not prohibited under the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Federal Realty Investment Trust), Credit Agreement (Federal Realty Investment Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of Loans on the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Effective Date is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) Borrower and complying with the applicable provisions of Section 2.92.8. executed by the Borrower;
(iii) The Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) An opinion of counsel to the BorrowerLoan Parties, addressed to the Agent and the Lenders, in substantially the form and substance acceptable to Agent’s counselset forth in Exhibit F;
(ivv) A copy, The declaration of trust of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative state of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationits incorporation;
(vvi) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower its incorporation and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices the Notice of Borrowing, Borrowing and Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditConversion;
(viiviii) Copies Copies, certified by the Secretary or Assistant Secretary of the Borrower, of (i) the bylaws of the Borrower and (ii) all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(ix) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the state of formation of such Guarantor;
(x) A certificate of good standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by (or other comparable evidence from) the Secretary of State of the state of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by (or other comparable evidence from) each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(xi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the Borrower officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and entity, (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a partyparty and (iii) the articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of such Guarantor;
(viiixiii) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxiv) Evidence of payment in full of all Indebtedness owed by the Borrower under the Existing Term Loan Agreement;
(xv) A Compliance Certificate, dated Certificate calculated as of the Effective DateDecember 31, based on financial results as of June 30, 2021 and after 2008 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xxvi) A letter from the agents under the Existing Agreement providing information regarding the payment in full The Notice of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requireBorrowing; and
(xiixvii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents; and
(c) No Default or Event of Default shall exist as of the date of the making of such Loans or would exist immediately after giving effect thereto; and
(d) The representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party shall be true and correct on and as of the date of the making of the Loans with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date) and except for changes in factual circumstances not prohibited under the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Federal Realty Investment Trust), Credit Agreement (Federal Realty Investment Trust)
Initial Conditions Precedent. The obligation of the Lenders Lender to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, perform its obligations under this Agreement is subject to the conditions precedent that Lender shall have received each of the following conditions precedentexecuted documents on the date of this Agreement:
(a) The Agent shall have received each of the followingPre-Approval Note, in the form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties Exhibit B attached hereto;
(iib) Notes executed by The First Year Sales Note, in the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions form of Section 2.9Exhibit C attached hereto;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(ivc) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance CertificateSecurity Agreement, dated as of the Effective Date, based on financial results as date of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement between Lender and Borrower (the use of "Security Agreement"), granting Lender a first priority, perfected security interest in the proceeds of Collateral (as defined in the Loans Security Agreement), as well as financing statements and other instruments duly filed in each jurisdiction that Lender deems necessary to be funded on establish and perfect a first priority, perfected security interest created by the Effective DateSecurity Agreement in such Collateral;
(xd) A letter from the agents under the Existing Agreement providing information regarding the payment in full Copies of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf resolutions of the Lenders may reasonably request.
(b) In Board of Directors of Borrower approving this Agreement, the good faith judgment of Notes, the Agent Security Agreement and the Lenders:
(i) There shall not have occurred any other documents required or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without in this Loan Agreement (collectively, the occurrence "Loan Documents") and the Services Agreement, in each case certified by an appropriate officer of any default under, conflict with or violation of Borrower;
(1e) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability A certificate of the appropriate officers of Borrower certifying (i) the names and true signatures of the officers of Borrower authorized to fulfill its obligations under sign the Loan Documents to and the Services Agreement, (ii) that the representations and warranties contained in Article IV of this Agreement are true and correct as of the date hereof, and (iii) that no event has occurred and is continuing, which it is a partyconstitutes an Event of Default (as defined in Section 7.01 hereof) or would constitute an Event of Default but for the requirement that notice be given or time elapse or both;
(f) A copy of the Ranolazine License Agreement, and all amendments thereto, certified as true and correct by an appropriate officer of Borrower.
(g) A legal opinion of ▇▇▇▇▇▇ Godward LLP, counsel for Borrower, regarding the Loan Documents and the transactions contemplated thereby; and
(ivh) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected Consents required to materially and adversely affect effectuate the transactions contemplated by this Agreement from all necessary parties (if any), including without limitation ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ and Biogen, Inc. or their respective affiliates, and the Loan Documentslicensor under the Ranolazine License Agreement.
Appears in 2 contracts
Sources: Loan Agreement (Cv Therapeutics Inc), Loan Agreement (Cv Therapeutics Inc)
Initial Conditions Precedent. The obligation of the Lenders shall not be obligated to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a fund any Loan or make any other extension of credit hereunder unless, on or before the issuance date hereof each of a Letter of Credit, is subject to the following conditions precedenthas been satisfied, in the sole opinion of Agents:
(a) The Agent Borrower and each other Person that is to be a party to any Loan Document shall have received executed and delivered each of the followingsuch Loan Document, all in form and substance satisfactory to Agents.
(b) Borrower shall cause to be delivered to the AgentAgents the following documents, each in form and substance reasonably satisfactory to Agents:
(i) Counterparts of this Agreement executed by each A copy of the parties heretoOrganic Documents of Borrower;
(ii) Notes executed by An incumbency certificate and certified resolutions of the board of directors (or other appropriate governing body) of Borrower, payable to each Lender (if requested signed by such Lender) a Senior Officer of Borrower, authorizing the execution, delivery and complying with performance of the applicable provisions of Section 2.9Loan Documents;
(iii) An A favorable legal opinion of each Obligor's outside legal counsel to the Borrower, addressed to the Agent Agents regarding such matters as Agents and the Lenders, in form and substance acceptable to Agent’s counseltheir counsel may request;
(iv) A copy, certified as of a recent date satisfactory Borrowing Base Certificate duly completed by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true together with all supporting statements, schedules and complete, of the corporate charter or other formation document of the Borrower reconciliations as in effect on such date of certificationrequired by Agents;
(v) A certificate Evidence of good standing insurance, reasonably satisfactory to Agents and otherwise meeting the requirements of the Loan Documents;
(vi) Duly executed Lien Waiver/Access Agreements as required by this Agreement or certificate any of similar meaning the other Loan Documents;
(vii) Borrower's financial statements for its most recently concluded Fiscal Year and for the fiscal month ended July 2014 and such other financial reports and information concerning Borrower as Agents shall reasonably request; and
(viii) All additional opinions, documents, certificates and other assurances that Agents or their counsel may reasonably require.
(c) Agents shall have received, by virtue of UCC searches and/or other Lien searches, evidence satisfactory to it that there are no existing Liens with respect to the Borrower issued as of a recent date by the Secretary of State any of the state Collateral other than Permitted Liens.
(d) Agents shall have received a final payoff letter from any Person whose outstanding Debt is to be satisfied by remittance of formation proceeds from the Loans hereunder, and, if applicable, a disbursement letter shall be required to direct the payment of Loan proceeds to such Person.
(e) Agents shall have received, in form and content reasonably satisfactory to them, all appraisals of any of the Collateral that may be reasonably required by Agents and all field exams with respect to Borrower and a certificate or any of qualification the Collateral as may be required by Agents.
(f) Agents shall have received assurances, satisfactory to transact business them, that no litigation is pending or other comparable certificates issued by each Secretary of State (and threatened against any state department of taxation, as applicable) of each state in Obligor which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;.
(vig) A certificate Agents shall have determined, based upon their review of incumbency signed by a current Borrowing Base Certificate submitted to it, that after giving effect to the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), initial Loans and any other extensions of credit to be made by Lenders to Borrower (including Loans in an amount sufficient to satisfy any Debt that is secured by a Lien and is to be satisfied at closing) and the payment of all Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated required by this Agreement and the use reimbursement of all expenses pursuant to the Loan Documents, Borrower will have Availability (after deducting therefrom the aggregate amount of all of Borrower’s accounts payable that are more than 60 days past due) plus unrestricted cash and cash equivalents of not less than the amount shown in Item 14 of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably requestTerms Schedule.
(bh) In the good faith judgment of the Agent and the Lenders:
(i) There Borrower shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except satisfied such additional conditions precedent as are set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability Item 15 of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan DocumentsTerms Schedule.
Appears in 1 contract
Sources: Loan and Security Agreement (Pacific Ethanol, Inc.)
Initial Conditions Precedent. The obligation Borrower acknowledges that the Lender shall not make any Advances unless each of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the followingare satisfied, all in form and substance satisfactory to the AgentLender:
(a) The Borrower shall have delivered to the Lender:
(i) Counterparts Resolutions of the Board of Directors of the Borrower approving and authorizing (i) the execution, delivery and performance of this Agreement executed by Agreement, the Note, the Escrow Agreements and each of the parties heretoother documents required to be delivered hereunder, and (ii) the consummation of the transactions contemplated herein, certified by the Secretary or an Assistant Secretary of the Borrower;
(ii) Notes executed by Signature and incumbency certificates of the Borrowerofficer or officers of the Borrower authorized to execute this Agreement, payable the Note and the Escrow Agreements, and to each Lender (if requested by such Lender) and complying deal with the applicable provisions of Section 2.9Lender in connection therewith;
(iii) An opinion A duly executed and delivered counterpart of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselthis Agreement;
(iv) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, duly executed and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationdelivered Note;
(v) A Copies of (A) the certificate of good standing or certificate incorporation of similar meaning with respect to the Borrower issued as of a recent date Borrower, certified by the Secretary of State or similar public official of the state Borrower's jurisdiction of formation incorporation as of a recent date, and (B) the bylaws of the Borrower and a certificate of qualification to transact business Borrower, certified by the Secretary or other comparable certificates issued by each an Assistant Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse EffectBorrower;
(vi) A certificate of incumbency signed by good standing from the Secretary of State or Assistant Secretary (or other individual performing similar functions) public official, dated as of the Borrower with respect to a recent date, of each of the officers of the Borrower authorized to execute and deliver the Loan Documents to jurisdiction in which the Borrower is a party, and each of the officers of the Borrower authorized incorporated or qualified or licensed to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;transact business; and
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) A favorable opinion of counsel to the Borrower of and the Guarantor (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable who shall be satisfactory to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixLender) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool covering such matters as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders Lender may reasonably request.
(b) In The Borrower shall have performed in all material respects all agreements and satisfied all conditions which this Agreement provides shall be performed on or before the good faith judgment initial Advance.
(c) All actions required to create, perfect and preserve the security interest and lien of the Agent Lender in all Collateral then in existence or otherwise reasonably requested by, the Lender shall have been duly authorized and taken and all filings and recordings (including, without limitation, the execution and filing of such UCC financing statements as the Lender shall reasonably request) with governmental authorities or regulatory bodies and all actions with respect to such governmental authorities or regulatory bodies and all other Persons shall have been made or taken and completed, and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries Lender shall have received all approvalssatisfactory evidence thereof.
(d) The Borrower, consents the Lender and waivers, and each Person who will act as an Escrow Agent shall have made or given all necessary filings executed and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; anddelivered an Escrow Agreement.
(ive) There The Guarantors shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected executed and delivered the Guaranty to materially and adversely affect the transactions contemplated by the Loan DocumentsLender.
Appears in 1 contract
Sources: Mortgage and Co Op Loan Warehouse and Security Agreement (Community Home Mortgage Corp)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, Borrower payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.12, and the Swingline Note executed by the Borrower payable to the Agent (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyfavorable opinion of counsel to the Obligors, certified addressed to the Agent, the Lenders and the Swingline Lender, addressing such matters as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationAgent may reasonably require;
(v) A certificate The Governing Documents of good standing the Borrower, each Guarantor and each general partner, managing member (or certificate Person performing similar functions) of similar meaning with respect to the Borrower issued such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vi) A good standing certificate with respect to the Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Unencumbered Assets owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation Continuation, Notices of Conversion and Notices of Conversion Swingline Borrowings and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiiix) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixx) A Compliance Certificate, dated Certificate calculated as of December 31, 2008;
(xi) Copies of the Effective Date, based on financial results Unencumbered Asset Qualification Documents for each of the Properties included as an Unencumbered Asset as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(xxii) A letter from Payment to the agents Agent, for account of the lenders under the Existing Original Credit Agreement, of the “unused fee” and “letter of credit fee” that have accrued (and remain unpaid as of the Effective Date) under the Original Credit Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereofperiod to but excluding the Effective Date;
(xixiii) Such due diligence A fully executed copy of the Amended and Restated Term Loan Agreement and all other related agreements and documents, dated on or about the date of this Agreement, evidencing the $50,000,000 term loan facility between the Borrower, as borrower, and Bank of America, N.A., as agent and lender, together with respect evidence that the conditions precedent to the Unencumbered Pool as the Agent may reasonably requireeffectiveness of such facility have been satisfied or waived; and
(xiixiv) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) Each Departing Lender shall have received payment in full with respect to its “Commitment Percentage” (as defined in the Original Credit Agreement) of the Loans (as defined in the Original Credit Agreement) and the other obligations under the Original Credit Agreement.
(c) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Borrower, the other Obligors, and its their respective Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(iii) The Borrower Borrower, the other Obligors and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Wells Real Estate Investment Trust Ii Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, Borrower payable to each Lender (if requested by such Lender) , as applicable, and complying with the applicable provisions of Section 2.92.8;
(iii) An The Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) A favorable opinion of counsel to the BorrowerObligors, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified addressing such matters as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationAgent may reasonably require;
(v) A certificate The Governing Documents of good standing Borrower, each Guarantor, each general partner, and each managing member (or certificate Person performing similar functions) of similar meaning with respect to the Borrower issued such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vi) A good standing certificate with respect to Borrower, each Guarantor and each general partner, and each managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Unencumbered Assets owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners and managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which any of them is a party and the officers or other representatives of the Borrower is a partythen authorized to deliver the Notice of Borrowing and Notices of Continuation, and Notices of Conversion;
(viii) Copies, certified by the general partner, secretary or other authorized Person of each of the officers of Borrower, the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation Guarantors and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary their respective general partners or Assistant Secretary managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiiix) A copy of each document or agreement evidencing any of the Indebtedness described in Schedule 6.1(g) as Agent may request, in each case certified as true, correct and complete by the chief operating officer or chief financial officer of the Borrower;
(x) The Notice of Borrowing from the Borrower for the Loans indicating how the proceeds thereof are to be made available to the Borrower, and if any of the Loans initially are to be LIBOR Loans, the Interest Period therefor;
(xi) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixxii) A pro forma Compliance CertificateCertificate calculated as of March 31, dated 2011;
(xiii) A Transfer Authorizer Designation Form effective as of the Effective Agreement Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiixiv) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Borrower, the other Obligors, and its their respective Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) 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 which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(iiiiv) The Borrower Borrower, the other Obligors and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and;
(ivv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents; and
(vi) The Borrower and each other Obligor 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)).
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the BorrowerBorrowers, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the BorrowerBorrowers, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the each State in which the each Borrower is organized, and a duly authorized officer or similar representative of the such Borrower, as applicable, to be true and complete, of the corporate charter or other formation document of the such Borrower as in effect on such date of certification;
(v) A certificate of good standing or certificate of similar meaning with respect to the each Borrower issued as of a recent date by the Secretary of State of the state of formation of the each such Borrower and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the such Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the each Borrower with respect to each of the officers of the such Borrower authorized to execute and deliver the Loan Documents to which the such Borrower is a party, and in the case of the Borrower Representative, each of the officers of the Borrower such Person authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Borrowers of (i) the by-laws of such PersonBorrower, if a corporation, the operating agreement of such PersonBorrower, if a limited liability company, the partnership agreement of such PersonBorrower, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Borrower to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c)., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated Certificate and an Availability Certificate calculated as of the Effective Date, based on financial results as of June 30, 2021 and after Date (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(x) A letter from the agents agent under the Existing Agreement Credit Agreements, and from the lender under the existing loan secured by TDS, providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereofthereof (including the termination of all Liens securing such credit facilities);
(xi) The Eligible Real Estate Qualification Documents required by the Agent for each Unencumbered Property included in the Unencumbered Pool as of the Effective Date shall have been delivered to the Agent at the Borrowers’ expense and shall be in form and substance satisfactory to the Agent;
(xii) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiixiii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower EPR and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the any Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower EPR and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the any Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the any Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders Lender shall not be obligated to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a fund any Loan or the issuance make any other extension of a Letter credit hereunder unless, on or before November 15, 2012, each of Credit, is subject to the following conditions precedenthas been satisfied, in the sole opinion of Lender:
(a) The Agent shall have received Borrower and each of the followingother Person that is to be a party to any Loan Document has executed and delivered each such Loan Document, all in form and substance satisfactory to Lender.
(b) Borrower has caused to be delivered to Lender the Agentfollowing documents, each in form and substance satisfactory to Lender:
(i) Counterparts of this Agreement executed by each A copy of the parties heretoOrganic Documents of Borrower and each Subsidiary;
(ii) Notes executed An incumbency certificate and certified resolutions of the board of directors (or other appropriate governing body) of Borrower and each other Obligor executing any Loan Documents, signed by a Senior Officer of Borrower or such other Obligor, authorizing the Borrowerexecution, payable to each Lender (if requested by such Lender) delivery and complying with performance of the applicable provisions of Section 2.9Loan Documents;
(iii) An A favorable legal opinion of each Obligor's outside legal counsel to the Borrower, addressed to the Agent Lender regarding such matters as Lender and the Lenders, in form and substance acceptable to Agent’s counselits counsel may request;
(iv) A copy, certified as of a recent date satisfactory Borrowing Base Certificate duly completed by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true together with all supporting statements, schedules and complete, of the corporate charter or other formation document of the Borrower reconciliations as in effect on such date of certificationrequired by Lender;
(v) A certificate Evidence of good standing insurance satisfactory to Lender and otherwise meeting the requirements of the Loan Documents;
(vi) Duly executed Lien Waiver/Access Agreements as required by any of the Loan Documents;
(vii) Borrower's financial statements for its most recently concluded Fiscal Year and its most recently concluded fiscal month and such other financial reports and information as Lender shall request; and
(viii) All additional opinions, documents, certificates and other assurances that Lender or certificate its counsel may require.
(c) Lender has received evidence, by virtue of similar meaning UCC searches and other lien searches satisfactory to it that there are no existing Liens with respect to the Borrower issued as of a recent date by the Secretary of State any of the state Collateral other than Permitted Liens.
(d) Lender has received a final payoff letter from any Person whose outstanding Debt is to be satisfied on the Closing Date by remittance of formation proceeds from the Loans hereunder, and, if applicable, a disbursement letter to direct the payment of Loan proceeds to such Person.
(e) Lender has received, in form and content satisfactory to it, all appraisals (including appraisals of Inventory, Equipment and real estate) and field exams of any of the Borrower and a certificate of qualification Collateral that Lender requires.
(f) Lender has received assurances, satisfactory to transact business it, that no litigation is pending or other comparable certificates issued by each Secretary of State (and threatened against any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified Obligor that could reasonably be expected to have a Material Adverse Effect;.
(vig) A certificate Lender has determined, based upon its review of incumbency signed by a current Borrowing Base Certificate submitted to it, that after giving effect to the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), initial Loans and any other Fees payable extensions of credit to be made by Lender to Borrower on the AgentClosing Date, the Titled Agents and the Lenders on or prior payment of all Fees to the Effective Date;
(ix) A Compliance Certificate, dated Lender as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated required by this Agreement and the use reimbursement of all expenses pursuant to the Loan Documents, Borrower will have Availability of not less than the amount shown in Item 14 of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably requestTerms Schedule.
(bh) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except satisfied such additional conditions precedent as are set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability Item 15 of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan DocumentsTerms Schedule.
Appears in 1 contract
Sources: Loan and Security Agreement (Advanced Environmental Recycling Technologies 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: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 counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions terms of Section 2.92.10.(a);
(iii) An a Guaranty executed by each of the Guarantors initially to be a party thereto, and the Parent Guaranty executed by the Parent ;
(iv) an opinion of counsel to of the BorrowerParent and the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders, Lenders in form and substance acceptable to Administrative Agent’s counsel;
(ivv) A copythe certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party and the Parent certified as of a recent date by the appropriate officer Secretary of State of the State in which state of formation of such Person or by the Borrower is organized, and a duly authorized officer Secretary or similar representative of the Borrower, to be true and complete, of the corporate charter Assistant Secretary (or other formation document individual performing similar functions) of the Borrower as in effect on such date of certificationPerson;
(vvi) A a certificate of good standing (or certificate of similar meaning meaning) with respect to each Loan Party and the Borrower Parent issued as of a recent date by the Secretary of State of the state of formation of the Borrower each such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party and the Borrower Parent with respect to each of the officers of the Borrower such Person authorized to execute and deliver the Loan Documents to which the Borrower such Person is a party, and each in the case of the officers Borrower, authorized to execute and deliver on behalf of the Borrower authorized to deliver Notices of Borrowing, Notices requests for Letters of Continuation and Credit, Notices of Conversion and to request the issuance Notices of Letters of CreditContinuation;
(viiviii) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party and the Borrower Parent of (iA) the by-laws of such Person, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (iiB) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) The Fees a Borrowing Base Certificate calculated as of June 30, 2009
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower's fiscal quarter ending June 30, 2009;
(xi) with respect to each Property identified on Schedule 4.1., each of the items referred to in Section 6.3. required to be delivered in connection with any Borrowing Base Property;
(xii) a 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, if any, then due and payable under Section 3.6(c)3.5., together with all other fees, expenses and any other Fees reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, the Titled Agents and the Lenders on or prior to the Effective Datehave been paid;
(ixxviii) A Compliance Certificateinsurance certificates, dated as 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 reduction in coverage), together with appropriate evidence that the Administrative Agent, for its benefit and the benefit of the Effective DateLenders, based on financial results as of June 30the Issuing Bank, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of Specified Derivatives Providers is named as a lender's loss payee and additional insured, as appropriate, on all insurance policies that the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence Borrower, any Loan Party or any other Subsidiary actually maintains with respect to the Unencumbered Pool as the Agent may reasonably requireany Borrowing Base Property and improvements on such Borrowing Base Property; and
(xiixix) Such such other documents, agreements documents and instruments as the Agent on behalf of Administrative Agent, or any Lender through the Lenders Administrative Agent, may reasonably request.; and
(b) In the good faith judgment of the Agent and the LendersAdministrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party or the Parent to fulfill its obligations under the Loan Documents to which it is a party;
(iii) the Parent, the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except as set forth in Schedule 6.1(i))for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower Borrower, any other Loan Party or the Parent to fulfill its is obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders Bank to effect or permit make the occurrence Term Loan and to make an Advance under the Revolving Note, as of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Creditdate hereof, is subject to the following conditions precedent:
(a) The Agent condition precedent that the Bank shall have received each and every one of the following, following on or before the date hereof in form and substance satisfactory to the AgentBank:
(ia) Counterparts An originally executed copy of this Agreement executed by and each of the parties heretoother Loan Documents which are dated the date hereof, and all other documents, instruments and certificates required hereunder and thereunder;
(iib) Notes executed A copy of the certificate of incorporation and bylaws of the Borrower and each of the Borrower's Subsidiaries, certified as a true copy by the BorrowerSecretary or an Assistant Secretary of the Borrower or such Subsidiaries, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9as applicable;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(ivc) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date with respect to the Borrower and each of the Borrower's Subsidiaries by the Secretary secretary of State state of the state of formation each such entity's incorporation and each state where such entity is qualified to do business;
(d) A certificate of the Secretary or an Assistant Secretary of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (Existing Guarantor certifying the names and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each true signatures of the officers of the Borrower and each Existing Guarantor authorized to execute and deliver sign each of the Loan Documents to which the Borrower or each Existing Guarantor is a party, and each ;
(e) A copy of the officers resolutions approved by the Board of Directors of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize each Existing Guarantor authorizing the execution, delivery and performance by the Borrower and each Existing Guarantor of each of the Loan Documents to which it is a party, certified as a true copy by the Secretary or an Assistant Secretary of the Borrower or each Existing Guarantor;
(viiif) The Fees then due and payable under Section 3.6(c), and any other Fees payable Written opinions of counsel to the Agent, the Titled Agents Borrower and the Lenders on or prior to the Effective DateExisting Guarantors;
(ixg) A Compliance Certificate, dated as Written opinions of local counsel to each of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective DateInsurance Subsidiaries;
(xh) Evidence reasonably satisfactory to the Bank that all filings, recordings and other actions that are necessary or desirable in order to establish and perfect the Bank's security interest in the collateral described in the Pledge and Security Agreement, as a valid perfected first priority security interest shall have been or shall be duly effected, including, without limitation, the filing of financing statements, and the filing or recordation of such other documents as the Bank shall deem necessary or desirable, all in form and substance satisfactory to the Bank, and all fees, taxes and other charges relating to such filings and recordings shall have been paid by the Borrower;
(i) A letter from the agents under Borrower's actuary, plan administrator or other qualified representative stating that all of the Existing Agreement providing information regarding the payment Borrower's Plans are in full of amounts outstanding thereunder and providing for the termination thereofcompliance with ERISA;
(xij) Certified true copies of the financial statements of Old Lyme Insurance Company, Ltd., as filed with the Bermuda Monetary Authority, for fiscal years 1994, 1995 and 1996.
(k) Such due diligence other documents and information as the Bank shall reasonably request, in form and substance satisfactory to the Bank, and all legal matters and documents with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by this Agreement shall be satisfactory to counsel for the Loan DocumentsBank.
Appears in 1 contract
Sources: Loan Agreement (Kaye Group Inc)
Initial Conditions Precedent. The obligation of the Lenders Banks to effect make any Advance or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a issue any Letter of Credit, Credit is subject to the following conditions precedent:
(a) The condition precedent that the Agent shall have received each on or before the day of the first Advance or Letter of Credit (and, in any event, not later than May 14, 2004) all of the following, in form and substance satisfactory to the Agenteach Bank:
(ia) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes This Agreement, duly executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and each of the Lenders, in form and substance acceptable to Agent’s counsel;Banks.
(ivb) A copyThe Notes, certified as of a recent dated the date by the appropriate officer of the State in which the Borrower is organizedhereof, and a duly authorized officer or similar representative properly executed on behalf of the Borrower.
(c) The Fee Letters, to be true and complete, properly executed on behalf of the corporate charter or other formation document of the Borrower as in effect on such date of certification;Borrower.
(vd) A certificate of good standing the secretary or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation an assistant secretary of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize certifying that the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c)other documents contemplated hereunder have been duly approved by all necessary action of the Board of Directors of the Borrower, and attaching true and correct copies of the applicable resolutions granting such approval, (ii) certifying that attached to such certificate are true and correct copies of the Organizational Documents of the Borrower, together with such copies, and (iii) certifying the names of the officers of the Borrower that are authorized to sign the Loan Documents and other documents contemplated hereunder, together with the true signatures of such officers; all of the foregoing being accompanied by any other Fees payable information required by Section 326 of the USA PATRIOT ACT or necessary for the Agent or any Bank to verify the Agent, identity of the Titled Agents and Borrower as required by Section 326 of the Lenders on USA PATRIOT Act which is requested in writing by the Agent or such Bank prior to the Effective Date;date of this Agreement.
(ixe) A Compliance Certificatecertificate of good standing of the Borrower, dated as not more than twenty days before such date.
(f) Copies of order(s) of the Effective DatePublic Utilities Commission of the State of Colorado approving the execution, based on financial results as delivery and performance by the Borrower of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower party and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without and thereby.
(g) Signed copies of opinions of counsel for the occurrence Borrower, addressed to the Banks in substantially the forms of Exhibit D hereto.
(h) All fees required to be paid as of the date hereof under this Agreement or any default underFee Letter.
(i) Evidence that concurrently with the effectiveness of this Agreement, conflict all amounts (other than (i) reimbursement obligations with or violation respect to the Transitional Letters of Credit and (1ii) any Applicable Law other amounts waived by the requisite lenders under the Prior Credit Agreement) payable under the Prior Credit Agreement will be paid and the commitments thereunder will be terminated.
(j) Such other documents as the Agent or (2) any agreement, document the Required Banks may deem necessary or instrument advisable in connection with the credit facility evidenced hereby and which are requested in a writing delivered to which the Borrower or any Subsidiary is a party or by which any prior to the date of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documentsthis Agreement.
Appears in 1 contract
Sources: Credit Agreement (Xcel Energy Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each applicable Lender (including any Designated Lender, if applicable), other than any Lender that has requested by such Lender) that it not receive Notes, and complying with the applicable provisions terms of Section 2.92.11.
(a) and the Swingline Note executed by the Borrower;
(iii) An opinion opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the BorrowerBorrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, the certificate or articles of incorporation of the Borrower certified as of a recent date by the appropriate officer Secretary of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationMaryland state;
(v) A a certificate of good standing (or certificate of similar meaning meaning) with respect to the Borrower issued as of a recent date by the Secretary of State of the state State of formation of the Borrower Maryland and a certificate certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers authorized to execute and deliver on behalf of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and to request the issuance Notices of Letters of CreditContinuation;
(vii) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (iA) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity Borrower and (iiB) all corporate, partnership, member corporate or other necessary action taken by such Person the Borrower to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ended September 30, 2011;
(ix) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(x) evidence that all indebtedness, liabilities or obligations owing by the Borrower and its Subsidiaries under the Existing Credit Agreement shall be paid in full, and all commitments thereunder terminated, on the Agreement Date, and that all Liens, if any, securing such indebtedness, liabilities or other obligations will be released immediately upon such payments and termination of the commitments;
(xi) evidence that the Fees, if any, then due and payable under Section 3.6(c)3.5., together with all other fees, expenses and any other Fees reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requirehave been paid; and
(xii) Such such other documents, agreements and instruments as the Agent on behalf of Administrative Agent, or any Lender through the Lenders Administrative Agent, may reasonably request.; and
(b) In the good faith judgment of the Agent and the LendersAdministrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1A) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect affect, the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1A) any Applicable Law or (2B) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, enjoin impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There the Borrower shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated provided all information requested by the Loan DocumentsAdministrative Agent and each Lender in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, initial Loans hereunder is subject to the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Term Notes executed by the Borrower, payable to each Lender (if that has requested by such Lender) that it receive a Note and complying with the applicable provisions of Section 2.92.8.;
(iii) An the Guaranty executed by the Parent;
(iv) an opinion of the general counsel to of the BorrowerParent and the other Loan Parties, addressed to the Administrative Agent and the Lenders, addressing the matters set forth in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationExhibit F;
(v) A an opinion of ▇▇▇▇▇▇ & Bird, LLP, counsel to the Administrative Agent, addressed to the Administrative Agent and the Lenders, addressing the enforceability of the Loan Documents and such matters as the Administrative Agent shall reasonably request;
(vi) a certificate of good standing incumbency signed by the secretary or assistant secretary of the Parent with respect to each of the officers of the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which the Parent or the Borrower is a party and to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation), on behalf of the Borrower, Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(vii) a certified copy (certified by the secretary or assistant secretary of the Parent) of all necessary action taken by the Parent to authorize the execution, delivery and performance of the Loan Documents to which either the Parent or the Borrower is a party;
(viii) the declaration of trust of the Parent and the certificate of limited partnership of the Borrower, in each case, certified by the Secretary of State of the State of formation of such Person (a copy of which was provided in accordance with the Existing Credit Agreement), certified by the secretary or assistant secretary (or other individual performing similar functions) of the Parent and the Borrower as being true, correct and unmodified in all respects since the date so certified;
(ix) a Certificate of Good Standing or certificate of similar meaning with respect to the Parent and the Borrower issued as of a recent date by the Secretary of State of the state State of formation of the Borrower each such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower each such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vix) A certificate of incumbency signed copies certified by the Secretary secretary or Assistant Secretary assistant secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute Parent and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a Parent and the limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a partyBorrower;
(viiixi) The the Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Administrative Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxii) A a Compliance Certificate, dated Certificate calculated as of the Effective DateDecember 31, based on financial results as of June 302019, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(xxiii) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such such other documents, agreements and instruments as the Administrative Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Administrative Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (Corporate Office Properties, L.P.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, Borrower payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.10, and the Swingline Note executed by the Borrower payable to the Swingline Lender (which Notes shall be promptly forwarded by the Administrative Agent to the applicable Lender);
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copy, certified The Contribution Agreement executed by the Borrower and each Guarantor existing as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationEffective Date;
(v) A certificate favorable opinion of good standing or certificate of similar meaning with respect counsel to the Borrower issued Obligors, addressed to the Administrative Agent, the Lenders and the Swingline Lender, addressing such matters as Administrative Agent may reasonably require;
(vi) The Governing Documents of the Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vii) A good standing certificate with respect to the Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Borrowing Base Properties owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(viviii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation Continuation, Notices of Conversion and Notices of Conversion Swingline Borrowings and to request the issuance of Letters of Credit;
(viiix) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiix) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Administrative Agent and the Lenders on or prior to the Effective Date;
(ixxi) A pro forma Compliance Certificate, dated Certificate calculated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(xxii) A letter from Borrowing Base Certificate calculated as of the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereofEffective Date showing compliance with Section 2.13;
(xixiii) Such due diligence with respect to Any amendments, modifications or reaffirmations of the Unencumbered Pool as Loan Documents reasonably requested by the Agent may reasonably requireAdministrative Agent; and
(xiixiv) Such other documents, agreements and instruments as the Administrative Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Administrative Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Borrower, the other Obligors, and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Effective Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1A) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(iii) The Borrower Borrower, the other Obligors and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1A) any Applicable Law or (2B) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A1) have a Material Adverse Effect, or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Wells Core Office Income Reit Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.10. and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyAn opinion of the general counsel of the Parent and the Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, addressing the matters set forth in Exhibit I;
(v) An opinion of A▇▇▇▇▇ & Bird, LLP, counsel to the Agent, addressed to the Agent, the Lenders and the Swingline Lender, addressing the enforceability of the Loan Documents and such matters as the Agent shall reasonably request;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary of the Parent with respect to each of the officers of the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which the Parent or the Borrower is a party and to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing and requests for Letters of Credit;
(vii) a certified copy (certified by the Secretary or Assistant Secretary of the Parent) of all necessary action taken by the Parent to authorize the execution, delivery and performance of the Loan Documents to which either the Parent or the Borrower is a party;
(viii) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Parent, the Borrower and each Guarantor, certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, formation of the corporate charter or other formation document of the Borrower as in effect on such date of certificationPerson;
(vix) A certificate a Certificate of good standing Good Standing or certificate of similar meaning with respect to the Parent, the Borrower and each Guarantor (and in the case of a limited partnership, the general partner of such Guarantor) issued as of a recent date by the Secretary of State of the state State of formation of the Borrower each such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vix) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor with respect to each of the officers of the Borrower such Person authorized to execute and deliver the Loan Documents to which the Borrower such Person is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viixi) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Parent, the Borrower and each Guarantor of (i) the by-laws of such Person, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and entity;
(iixii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor of all corporate, partnership, member or other necessary action taken by such Person each Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) The a letter from the administrative agent under the Existing Credit Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof and all Liens securing the Existing Credit Agreement;
(xiv) the Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxv) A a Compliance CertificateCertificate calculated as of December 31, dated 2003;
(xvi) a Borrowing Base Certificate calculated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiixvii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Corporate Office Properties Trust)
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, this Agreement is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, a Note payable to each Lender (if requested by such Lender) not party to the Prior Credit Agreement and a replacement Note payable to each Lender whose Commitment is being increased pursuant to this Agreement, in each case complying with the applicable provisions terms of Section 2.92.13.(a);
(iii) An opinion ratification by the Guarantors and Operating Lessees of counsel their obligations under the Loan Documents to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselwhich they are parties;
(iv) A copysuch amendments to the Security Documents as Administrative Agent may require;
(A) an opinion of ▇▇▇▇▇ Lovells US LLP, counsel to the Borrower and the other Loan Parties, and (B) to the extent required by Administrative Agent, an opinion of local counsel reasonably satisfactory to Administrative Agent, as special counsel to the Loan Parties, each addressed to the Administrative Agent and the Lenders and collectively covering the matters set forth in Exhibit H;
(vi) to the extent required by Administrative Agent, the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer state of organization or similar representative formation of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationPerson;
(vvii) A to the extent required by Administrative Agent, a certificate of good standing (or certificate of similar meaning meaning) with respect to the Borrower each Loan Party issued as of a recent date by the Secretary of State of the state of formation of the Borrower each such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) A to the extent required by Administrative Agent, a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party with respect to each of the officers of the Borrower such Person authorized to execute and deliver the Loan Documents to which the Borrower such Person is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viiix) Copies to the extent required by Administrative Agent, copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party of (iA) the by-laws of such Person, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity (or, in lieu of the foregoing, a certificate of such Secretary or Assistant Secretary (or other individual performing similar functions) that the applicable document or documents delivered pursuant to the Original Credit Agreement or Prior Credit Agreement have not been modified or amended and remain in full force and effect) and (iiB) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) The Fees a Compliance Certificate for the Parent Guarantor’s fiscal quarter ended June 30, 2011;
(xi) Intentionally Omitted;
(xii) to the extent required by Administrative Agent, title insurance endorsements to the title insurance policies previously issued to Administrative Agent.
(xiii) to the extent required by Administrative Agent, UCC, tax, judgment and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions indicating that there are no Liens of record with respect to the assets of each such Loan Party other than Permitted Liens;
(xiv) evidence that the Fees, if any, then due and payable under Section 3.6(c)3.5., together with all other fees, expenses and any other Fees reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requirehave been paid; and
(xiixv) Such such other documents, agreements documents and instruments as the Agent on behalf of Administrative Agent, or any Lender through the Lenders Administrative Agent, may reasonably request.; and
(b) In the good faith judgment No Default or Event of the Agent and the Lenders:
(i) There Default shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a partyexist; and
(ivc) There shall not have occurred The representations and warranties made or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated deemed made by the Borrower and each other Loan DocumentsParty in this Agreement and in the other Loan Documents delivered pursuant to Section 6.1. shall be true and correct.
Appears in 1 contract
Initial Conditions Precedent. The obligation obligations of the Lenders Banks to effect make the Loans pursuant to the initial Borrowing Request, to advance the Term Loan on the Funding Date or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of to issue a Letter of Credit, is Credit on the Closing Date are subject to satisfaction of the following conditions precedentprecedent on the Funding Date:
(a) The this Agreement in form and substance satisfactory to the Agent and its counsel shall have been duly executed and delivered to the Agent by the Company and MacDermid Imaging;
(b) the Notes shall have been duly executed and delivered to the Agent by the applicable Borrowers;
(c) the Agent shall have received Certificates of duly authorized officers of the Company and MacDermid Imaging certifying that the following statements shall be true as of the Funding Date:
(i) the representations and warranties contained in Article 5, and in the case of a Borrowing by an Eligible Subsidiary, Section 4.5, and the representations and warranties made by the Guarantors in Section of the Guaranty, are true and correct in all material respects on and as of the date of such Loans or the issuance of such Letter of Credit as though made on and as of such date (unless they specifically related to an earlier date); and
(ii) no Default or Event of Default has occurred and is continuing, or would result from such Loans or the issuance of such Letter of Credit; and
(d) an Authorization Letter in form and substance satisfactory to the Agent and its counsel shall have been duly executed and delivered to the Agent by each of the followingCompany, MacDermid Imaging and as applicable, any Eligible Subsidiary;
(e) the Guaranty, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement Agent and its counsel shall have been duly executed and delivered to the Agent by each of the parties heretoGuarantors;
(iif) Notes executed by all amounts outstanding under the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9Existing Credit Facility shall have been repaid;
(iiig) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of Company and MacDermid Imaging, dated the Borrower authorized Funding Date, shall have been delivered to execute and deliver the Loan Documents Agent attesting to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary corporate action taken by such Person to authorize the Company and MacDermid Imaging, including resolutions adopted by their respective Boards of Directors authorizing the execution, delivery and performance of the Loan Facility Documents and each other document to which it is a partybe delivered pursuant to this Agreement and certifying the names and true signatures of the officers of the Company and MacDermid Imaging, authorized to sign the Facility Documents and the other documents to be delivered by the Company and MacDermid Imaging, under this Agreement;
(viiih) The Fees then due and payable under Section 3.6(c)a certificate of a duly authorized officer of the Company, and any other Fees payable dated the Funding Date, shall have been delivered to the AgentAgent setting forth the calculation of the ratio for the twelve- month period ending September 30, 1995, of (i) the Titled Agents Debt of the Company and its Consolidated Subsidiaries on a consolidated basis adjusted to include the Debt of the Division during such period as reflected in the Division's internally prepared financial reports and the Lenders Debt incurred pursuant to this Agreement on or prior the Funding Date to (ii) Consolidated EBITDA adjusted to include the Effective Dateearnings before interest, taxes, depreciation and amortization of the Division for such period minus Consolidated Capital Expenditures adjusted to include capital expenditures of the Division during such period;
(ixi) A Compliance Certificate, a favorable opinion of counsel for the Company and MacDermid Imaging dated as of the Effective Funding Date, based on financial results in substantially the form of EXHIBIT E and as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool such other matters as the Agent may reasonably require; andrequest shall have been delivered to the Agent;
(xiij) Such other documentssince September 30, agreements 1995, there has been no material adverse change in the business, financial position or results of operations of the Hercules Division from that reflected in the Monthly Management Report and instruments as no event shall have occurred (and the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to aware of conditions) which the Agent or any Bank reasonably determines could have a material adverse effect on (i) the operations, assets or prospects of the Lenders any event, condition, situation or status since Company and the date of the information contained Hercules Division from those reflected in the financial and business projectionsSeptember 30, budgets1995 Monthly Management Report, pro forma data and forecasts concerning taken as a whole, or (ii) any Borrower's ability to meet its obligations under any Facility Document;
(k) the Borrower and its Subsidiaries delivered Agent shall have received evidence satisfactory to the Agent that each Borrower and the Lenders prior Hercules is in compliance in all material respects with all foreign and U.S. federal, state and local laws (including laws relating to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effectenvironment);
(iil) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding the Agent shall have received phase one and phase two environmental assessments of the properties of the Hercules Division which shall be pending or threatened which could reasonably be expected satisfactory to (1) result the Agent in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a partysole discretion;
(iiim) The Borrower and its Subsidiaries MacDermid Imaging shall have received all approvals, consents and waiversa credit at closing (subject to subsequent adjustment as contemplated by the Purchase Agreement) of not less than $30,000,000 against the purchase price paid to Hercules Inc. pursuant to the Purchase Agreement from the issuance of its preferred stock, and shall have made or given all necessary filings the terms and notices, as conditions of such preferred stock shall be required satisfactory to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of Agent in its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; andsole discretion;
(ivn) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan DocumentsPurchase Agreement shall have been consummated;
(o) the audited financial statements of the Company and its Consolidated Subsidiaries for the fiscal year ending March 31, 1995 shall have been delivered to the Agent;
(p) the Agent shall have received a Consent and Acknowledgement Agreement relating to the Preferred Stock in form and substance satisfactory to the Agent from Hercules Incorporated agreed to by the Company and MacDermid Imaging;
(q) the Agent shall have received audited financial statements for the Hercules Division as of December 31, 1994, December 31, 1993, and December 31, 1992; and
(r) the Agent shall have received such other certificates, opinions and information as the Agent shall reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Macdermid Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 2024 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Epr Properties)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions terms of Section 2.92.8.(a);
(iii) The Guaranty executed by the Parent and each other Guarantor existing as of the Effective Date;
(iv) An opinion of Lowndes, Drosdick, Doster, Kantor & Reed, counsel to the Borrower▇▇▇ ▇▇an ▇▇▇▇ies, addressed to the Agent Administrative Agent, the Arrangers and the Lenders, in substantially the form and substance acceptable to Agent’s counselof Exhibit H;
(ivv) A copyAn opinion of Smith Helms Mulliss & Moore, L.L.P., ▇o▇▇▇ Car▇▇▇▇▇ counsel to the Loan Parties, addressed to the Administrative Agent, the Arrangers and the Lenders, regarding the enforceability of the Agreement and the other Loan Documents under the laws of the State of North Carolina, and such other matters of North Carolina law as the Administrative Agent may reasonably request;
(vi) The certificate of limited partnership of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationDelaware;
(vvii) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the State of Delaware and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of formation taxation, as applicable) of each state in which the Borrower is required to be so qualified;
(viii) A certificate of incumbency signed by the Secretary or Assistant Secretary of the general partner of the Borrower with respect to each of the officers of the general partner of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party and the officers of the general partner of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(ix) Copies (certified by the Secretary or Assistant Secretary of the general partner of the Borrower) of the limited partnership agreement of the Borrower and of all corporate (or comparable) action taken by the Borrower (and any of the partners of the Borrower) to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(x) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of the Parent and each other Guarantor certified as of a recent date by the Secretary of State of the State of formation of such Guarantor;
(xi) A certificate of good standing or certificate of similar meaning with respect to the Parent and each other Guarantor issued as of a recent date by the Secretary of State of the State of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vixii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower Parent and each other Guarantor with respect to each of the officers of the Borrower such Guarantor authorized to execute and deliver the Loan Documents to which the Borrower such Guarantor is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viixiii) Copies certified by the Secretary or Assistant Secretary of the Parent and each other Guarantor (or other individual performing similar functions) of the Borrower of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiv) A copy of (x) each of the documents, instruments and agreements evidencing any of the Debt described on Schedule 6.1.(h); (y) each Material Contract and (z) each of the documents, instruments and agreements evidencing any of the transactions described on Schedule 9.13., in each case certified as true, correct and complete by the chief executive officer or chief financial officer of the Parent;
(xv) The Fees Fees, if any, then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Administrative Agent, the Titled Agents Arrangers, the Syndication Agent and the Lenders on or prior to Documentation Agent;
(xvi) A Compliance Certificate calculated as of December 31, 1998;
(xvii) An Unencumbered Property Certificate calculated as of the Effective Date;
(ixxviii) A Compliance Certificate, dated as written description of the Effective DateConsolidation outlining the proposed organizational structure, based on financial results as condition, executive management, board of June 30directors (or other comparable body), 2021 and business plan of the Parent and its Subsidiaries, in each case, after giving pro forma effect to the financing contemplated by this Agreement Consolidation, which must be in form and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect substance satisfactory to the Unencumbered Pool as the Agent may reasonably requireLenders; and
(xiixix) Such other documents, agreements and instruments as the Administrative Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent Administrative Agent, the Arrangers and the LendersSyndication Agent:
(i) There shall not have occurred or become known to the Administrative Agent, either Arranger or the Syndication Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Parent and its Subsidiaries delivered to the Administrative Agent, the Arrangers, the Syndication Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in have a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in have a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its respective obligations under the Loan Documents to which it is a party;
(iii) The Borrower Borrower, the Parent and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (CNL American Properties Fund Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each Lender (or Designated Lender, if requested by such Lenderapplicable) and complying with the applicable provisions of Section 2.92.11., and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyAn opinion of legal counsel to the Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, addressing the matters set forth in Exhibit M;
(v) The articles of incorporation of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative state of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationits incorporation;
(vvi) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower its incorporation and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary or Assistant Secretary of the Borrower, of (i) the bylaws of the Borrower and (ii) all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(ix) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the state of formation of such Guarantor;
(x) A certificate of good standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by the Secretary of State of the state of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(xi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the Borrower officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) a certificate from a Responsible Officer of the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects and (y) immediately after giving effect to the transactions contemplated by this Agreement, no Default or Event of Default shall exist;
(xiv) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxv) A Compliance Certificate, dated Certificate calculated as of the Effective DateMarch 31, based on financial results as of June 30, 2021 and after 2007 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requireAgreement); and
(xiixvi) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.;
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (UDR, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each Lender (or Designated Lender, if requested by such Lenderapplicable) and complying with the applicable provisions of Section 2.92.11., and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyAn opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, counsel to the Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, substantially in the form of Exhibit N-1, and opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, LLP, special Maryland and Pennsylvania counsel to the Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, substantially in the form of Exhibit N-2;
(v) The declaration of trust of the Borrower certified as of a recent date by the appropriate officer Department of Assessments and Taxation of the State of Maryland;
(vi) A good standing certificate with respect to the Borrower issued as of a recent date by the Department of Assessments and Taxation of the State of Maryland and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is organizedrequired to be so qualified;
(vii) A certificate of incumbency signed by the Secretary or Assistant Secretary of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party and the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation and a duly authorized officer Notices of Conversion and to request the issuance of Letters of Credit;
(viii) Copies, certified by the Secretary or similar representative Assistant Secretary of the Borrower, of all corporate (or comparable) action taken by the Borrower to be true authorize the execution, delivery and complete, performance of the corporate charter or other formation document of Loan Documents to which the Borrower as in effect on such date of certificationis a party;
(vix) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the State of formation of such Guarantor;
(x) A certificate of good standing or certificate of similar meaning with respect to the Borrower each Guarantor issued as of a recent date by the Secretary of State of the state State of formation of the Borrower each such Guarantor and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vixi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor with respect to each of the officers of the Borrower such Guarantor authorized to execute and deliver the Loan Documents to which the Borrower such Guarantor is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viixii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of the Borrower of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) A copy of (x) each of the documents, instruments and agreements evidencing any of the Indebtedness described on Schedule 6.1.(g) and (y) the Advisory Agreement, the Management Agreement and each other Material Contract, in each case certified as true, correct and complete by the chief executive officer or chief financial officer of the Borrower;
(xiv) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxv) A Compliance Certificate, dated Certificate calculated as of the Effective DateDecember 31, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date2000;
(xxvi) A letter from the agents Agent under the Existing Credit Agreement providing information regarding to the payment in full of effect that such agreement has terminated and all amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requirehave been paid; and
(xiixvii) Such other documents, agreements and instruments as the Administrative Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of On or before the Lenders to effect or permit the occurrence of the first Credit Event hereunderInitial Conditions Precedent Deadline, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:precedent (the "Initial Conditions Precedent") shall be satisfied, and if each is not satisfied by the Initial Conditions Precedent Deadline, this Agreement may be terminated by either Party upon written notice to the other Party delivered within thirty (30) days after the Initial Conditions Precedent Deadline (provided that no such notice may be given solely for the failure of the condition set forth in clause (c) until the date ninety (90) days after the Initial Conditions Precedent Deadline):
(a) The Agent Seller shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts obtained approval of this Agreement executed by each its Board of Directors (the adequacy of which shall be determined by Seller in its sole discretion) and, if advisable or necessary, by the Board of Directors of its ultimate corporate parent, which approval may, for the avoidance of doubt, be expressly subject to the Board of Directors' confirmation of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer satisfaction of the State condition precedent in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
clause (vd) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably requestbelow.
(b) In Buyer shall have obtained approval of this Agreement by its Board (the good faith judgment adequacy of which shall be determined by Buyer in its sole discretion), which approval may, for the avoidance of doubt, be expressly subject to the Board confirmation of the Agent satisfaction of the condition precedent in clause (d) below.
(c) Buyer, Seller and Marketer shall have entered into the Marketing and Services Agreement and Buyer shall have entered into the Management Agreements; and.
(d) The IURC shall have issued the IURC Order and each of the Seller and the Lenders:Buyer shall be satisfied with the contents of the IURC Order.
(e) Seller shall have obtained a Conditional Commitment from the DOE to provide the DOE Guaranteed Financing in an amount sufficient for Seller to finance the construction of the Plant, the commercial terms (i.e., interest rate, tenor, principal amount, coverage ratios and reserve requirements) of which (i) There Buyer shall not have occurred or become known confirmed to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in be consistent with the financial model provided by Seller to Buyer for the Project and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding are satisfactory to Buyer in its sole discretion.
(f) Seller shall be pending or threatened have delivered to Buyer a certificate of the President of Seller which could reasonably be expected to (1) result in a Material Adverse Effect (except as certifies that all the representations and warranties of Seller set forth in Schedule 6.1(i)Section 6.3 (Representations and Warranties of Seller) are, after giving effect to the updates and/or material changes described in Section 6.16 (Updates of Diligence Information), or true and correct in all material respects, (2other than any representation and warranty which is qualified by materiality shall be true and correct in all respects) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability as of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have Initial Conditions Precedent Date as if made or given all necessary filings and notices, by Seller as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documentsdate.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.8;
(iii) An the Account Agreement substantially in the form of Exhibit F, duly executed by the Account Bank, the Borrower and the Agent (the "Cash Account Assignment Agreement");
(iv) the Security Agreement substantially in the form of Exhibit G, duly executed by the Borrower and the Agent (the "Security Agreement");
(v) UCC-1 Financing Statements in a form acceptable for filing with the Secretary of State of Maryland which shall describe the Borrower as debtor and the Agent as secured party with respect to the Collateral;
(vi) insofar as any of the Collateral constitutes instruments, chattel paper, and/or certificated securities, the execution and delivery of custody or other arrangements with the Account Bank pursuant to which such components of the Collateral shall be delivered to the possession of, and subject to the dominion and control of, the Account Bank for the benefit of the Agent;
(vii) an opinion of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower, addressed to the Agent and the Lenders, Lenders substantially in the form of Exhibit H and substance acceptable to Agent’s counselcovering such matters as are customary for financings of the type contemplated by the Loan Documents and such other matters as the Agent may reasonably request;
(ivviii) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary Department of Assessments and Taxation of the State of the state of formation of the Borrower Maryland and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viix) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditConversion;
(viix) Copies copies, certified by the Secretary or Assistant Secretary of the Borrower, of all corporate (or other individual performing similar functionscomparable) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person the Borrower to authorize the execution, delivery and performance of the Loan Documents to which it the Borrower is a party;
(viiixi) The the Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxii) A Compliance Certificate, dated a Monthly Report calculated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use end of the proceeds of the Loans to be funded on the Effective Datemost recent calendar month;
(xxiii) A letter from a Compliance Certificate calculated as of the agents under end of the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereofmost recent calendar quarter;
(xixiv) Such due diligence results satisfactory to the Agent with respect to the Unencumbered Pool as due diligence examination of the Loan Portfolio;
(xv) results satisfactory to the Agent may reasonably requirewith respect to the UCC, Lien, judgment and tax searches conducted with respect to the Borrower; and
(xiixvi) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(ixvii) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(iixviii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a partyDocuments;
(iiixix) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a partyDocuments; and
(ivxx) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Technology Investment Capital Corp)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.10., and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyAn opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, counsel to the Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, substantially in the form of Exhibit I-1, and opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, LLP, special Maryland counsel to the Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, substantially in the form of Exhibit I-2;
(v) The declaration of trust of the Borrower certified as of a recent date by the appropriate officer Department of Assessments and Taxation of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationMaryland;
(vvi) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary Department of Assessments and Taxation of the State of the state of formation of the Borrower Maryland and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary or Assistant Secretary of the Borrower, of all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(ix) The Governing Documents of each Guarantor certified as of a recent date by the Secretary of State of the State of formation of such Guarantor;
(x) A certificate of good standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by the Secretary of State of the State of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified would have, in each instance, a Material Adverse Effect;
(xi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the Borrower officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) A copy of (x) each of the documents, instruments and agreements evidencing any of the Indebtedness described on Schedule 6.1.(g), (y) all Leases, all Ancillary Agreements, the Advisory Agreement, and each other Material Contract, in each case certified as true, correct and complete by the chief operating officer or chief financial officer of the Borrower, and (z) a Lease Abstract with respect to each Lease for the Unencumbered Hotels;
(xiv) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixxv) A Compliance Certificate, dated Certificate calculated as of the Effective DateDecember 31, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require2001; and
(xiixvi) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Agent and the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions terms of Section 2.92.11.
(a) and the Swingline Note executed by the Borrower;
(iii) An the Guaranty executed by each of the Guarantors initially to be a party thereto;
(iv) favorable UCC, tax, judgment and lien search reports with respect to the Parent, the Borrower and each of the initial Guarantors owning a Borrowing Base Property in all necessary or appropriate jurisdictions and under all legal and appropriate trade names indicating that there are no prior Liens on any of the assets of such Persons other than Permitted Liens or Liens which are to be terminated prior to the Effective Date;
(v) an opinion of Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Parent, the Borrower, the Guarantors, addressed to the Agent and the Lenders, Lenders and in substantially the form and substance acceptable to Agent’s counselof Exhibit D;
(ivvi) A copy, the Certificate of Limited Partnership of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationDelaware;
(vvii) A certificate a Certificate of good standing or certificate of similar meaning Good Standing with respect to the Borrower issued as of a recent date by the Secretary of State of the State of Delaware and certificates of qualification to transact business or other comparable certificates with respect to the Borrower issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified;
(viii) a certificate of incumbency signed by the Secretary or Assistant Secretary of the Parent with respect to each of the officers of the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which the Parent or the Borrower is a party and to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, Notices of Conversion, Notices of Continuation and Disbursement Requests;
(ix) a certified copy (certified by the Secretary or Assistant Secretary of the Parent) of the Trust Agreement, the Partnership Agreement and of all necessary action taken by the Parent to authorize the execution, delivery and performance of the Loan Documents to which either the Parent or the Borrower is a party;
(x) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the State of formation of such Person;
(xi) a Certificate of Good Standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by the Borrower Secretary of State of the State of formation of each such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vixii) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor with respect to each of the officers of the Borrower such Person authorized to execute and deliver the Loan Documents to which the Borrower such Person is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viixiii) Copies copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiv) The Fees then due and payable under Section 3.6(ca Borrowing Base Certificate calculated as of the Effective Date (but using Net Operating Income from financial statements for the fiscal quarter ending September 30, 2000), and any other Fees payable to which Borrowing Base Certificate shall indicate that the AgentBorrower has sufficient borrowing capacity, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as to satisfy in full all of June 30, 2021 and after giving pro forma effect the obligations outstanding under the Existing Credit Agreement immediately prior to the financing contemplated by effectiveness of this Agreement and the use of the proceeds of the Loans to be funded on the Effective DateAgreement;
(xxv) A letter from a Compliance Certificate calculated on a pro forma basis for the agents Parent's fiscal quarter ending September 30, 2000;
(xvi) with respect to each Property identified on Schedule 4.1., each of the items referred to in Section 4.1. required to be delivered in connection with any Borrowing Base Property;
(xvii) the documents and instruments necessary to assign the outstanding obligations and certain of the collateral under the Existing Credit Agreement providing information regarding from the payment in full of amounts outstanding thereunder Existing Banks and providing for the termination thereof;
(xi) Such due diligence with respect Existing Agent to the Unencumbered Pool as the Lenders and Agent may reasonably requirehereunder; and
(xiixviii) Such such other documents, agreements documents and instruments as the Agent on behalf of Agent, or any Lender through the Lenders Agent, may reasonably request.; and
(b) In the good faith judgment of the Agent and the LendersAgent:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its the other Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in have a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1A) result in have a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iii) The Parent, the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except as set forth in Schedule 6.1(i))for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower Borrower, the Parent or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Pennsylvania Real Estate Investment Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, Borrower payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.12, and the Swingline Note executed by the Borrower payable to the Swingline Lender (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An The Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) The Pledge Agreement executed by the Borrower and each other Obligor that is a party to the Pledge Agreement;
(v) The Contribution Agreement executed by the Borrower and each Guarantor existing as of the Effective Date;
(vi) A favorable opinion of counsel to the BorrowerObligors, addressed to the Agent Agent, the Lenders and the LendersSwingline Lender, in form and substance acceptable to Agent’s counseladdressing such matters as Agent may reasonably require;
(ivvii) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative The Governing Documents of the Borrower, to be true each Guarantor and completeeach general partner, managing member (or Person performing similar functions) of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(viii) A good standing certificate with respect to the Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Borrowing Base Properties owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(viix) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation Continuation, Notices of Conversion and Notices of Conversion Swingline Borrowings and to request the issuance of Letters of Credit;
(viix) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiixi) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixxii) A pro forma Compliance Certificate, dated as of the Effective Date, based on financial results Certificate calculated as of June 3029, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date2011;
(xxiii) A letter from the agents under the Existing Agreement providing information regarding the payment in full Borrowing Base Certificate calculated as of amounts outstanding thereunder and providing for the termination thereofJune 29, 2011 showing compliance with Section 2.13;
(xixiv) Such due diligence Each of the conditions set forth in Section 7.17 shall have been satisfied with respect to the Unencumbered Pool as Collateral;
(xv) Any amendments, modifications or reaffirmations of the Agent may Loan Documents reasonably requirerequested by the Agent; and
(xiixvi) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Borrower, the other Obligors, and its their respective Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Effective Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party; provided, that the investigation of ▇▇▇▇▇ Investment Securities Inc. by the Financial Industry Regulatory Authority (the “FINRA Investigation”) and any censure related thereto shall not be deemed a violation of this provision unless such investigation leads to any significant action or material sanction against, or suspension of, ▇▇▇▇▇ Investment Securities Inc., as reasonably determined by the Requisite Lenders;
(iii) The Borrower Borrower, the other Obligors and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Wells Core Office Income Reit Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.10. and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyAn opinion of the general counsel of the Parent and the Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, addressing the matters set forth in Exhibit I;
(v) An opinion of ▇▇▇▇▇▇ & Bird, LLP, counsel to the Agent, addressed to the Agent, the Lenders and the Swingline Lender, addressing the enforceability of the Loan Documents and such matters as the Agent shall reasonably request;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary of the Parent with respect to each of the officers of the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which the Parent or the Borrower is a party and to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing and requests for Letters of Credit;
(vii) a certified copy (certified by the Secretary or Assistant Secretary of the Parent) of all necessary action taken by the Parent to authorize the execution, delivery and performance of the Loan Documents to which either the Parent or the Borrower is a party;
(viii) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Parent, the Borrower and each Guarantor, certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, formation of the corporate charter or other formation document of the Borrower as in effect on such date of certificationPerson;
(vix) A certificate a Certificate of good standing Good Standing or certificate of similar meaning with respect to the Parent, the Borrower and each Guarantor (and in the case of a limited partnership, the general partner of such Guarantor) issued as of a recent date by the Secretary of State of the state State of formation of the Borrower each such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vix) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor with respect to each of the officers of the Borrower such Person authorized to execute and deliver the Loan Documents to which the Borrower such Person is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viixi) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Parent, the Borrower and each Guarantor of (i) the by-laws of such Person, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and entity;
(iixii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor of all corporate, partnership, member or other necessary action taken by such Person each Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) The the Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxiv) A a Compliance CertificateCertificate calculated as of March 31, dated 2005;
(xv) a Borrowing Base Certificate calculated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiixvi) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.or
Appears in 1 contract
Sources: Credit Agreement (Corporate Office Properties Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.8.;
(iii) The Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) An opinion of legal counsel to the BorrowerLoan Parties, addressed to the Agent and the Lenders, addressing the matters set forth in form and substance acceptable to Agent’s counselExhibit F;
(ivv) A copy, The articles of incorporation of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative state of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationits incorporation;
(vvi) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower its incorporation and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices the Notice of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditConversion;
(viiviii) Copies Copies, certified by the Secretary or Assistant Secretary of the Borrower, of (i) the bylaws of the Borrower and (ii) all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(ix) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the state of formation of such Guarantor;
(x) A certificate of good standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by the Secretary of State of the state of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(xi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the Borrower officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) The Fees then due A certificate from a Responsible Officer of the Borrower to the effect that (x) all representations and payable under Section 3.6(c)warranties of the Loan Parties contained in the Loan Documents are true, correct and any other complete in all material respects and (y) immediately after giving effect to the transactions contemplated by this Agreement, no Default or Event of Default shall exist;
(xiv) Any Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxv) A Compliance Certificate, dated Certificate calculated as of the Effective DateDecember 31, based on financial results as of June 30, 2021 and after 2007 (giving pro forma effect to this Agreement);
(xvi) The Notice of Borrowing from the financing contemplated by this Agreement and Borrower for the use of Loans indicating how the proceeds thereof are to be made available to the Borrower, and if any of the Loans initially are to be funded on LIBOR Loans, the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requireInterest Periods therefore; and
(xiixvii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.;
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (UDR, Inc.)
Initial Conditions Precedent. The effectiveness of this Agreement and obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, Borrower payable to each Lender (if other than any Lender that has requested by such Lendernot to receive a Note) and complying with the applicable provisions of Section 2.92.10 (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An The Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) A favorable opinion of counsel to the BorrowerObligors, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified addressing such matters as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationAgent may reasonably require;
(v) A certificate The Governing Documents of good standing the Borrower, each Guarantor and each general partner, managing member (or certificate Person performing similar functions) of similar meaning with respect to the Borrower issued such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vi) A good standing certificate with respect to the Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Unencumbered Assets owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiiix) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full pro forma Compliance Certificate calculated as of amounts outstanding thereunder and providing for the termination thereofSeptember 30, 2018;
(xi) Such due diligence with respect A certificate signed by a Responsible Officer of the Borrower certifying that each Property to be treated as an Unencumbered Asset on the Effective Date satisfies all of the requirements for an Unencumbered Asset set forth in the definition thereof;
(A) The documentation and other information requested by any Lender that is required by regulatory authorities under the applicable “know your customer” rules and regulations and (B) to the Unencumbered Pool extent the Borrower qualifies as a “legal entity customer” under the Agent may reasonably requireBeneficial Ownership Regulation, at least five days prior to the Effective Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (B) shall be deemed to be satisfied); and
(xiixiii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsDecember 31, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date 2017 that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;; and
(iii) The Borrower Borrower, the other Obligors and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Columbia Property Trust, Inc.)
Initial Conditions Precedent. The effectiveness of the amendment and restatement of the Existing Credit Agreement contemplated hereby, as well as the obligation of the Lenders to effect or 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 following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions terms of Section 2.92.8.(a);
(iii) The Guaranty executed by the Parent and each other Guarantor existing as of the Effective Date;
(iv) An opinion of Lowndes, Drosdick, Doster, ▇▇▇▇▇▇ & ▇▇▇▇, counsel to the BorrowerLoan Parties, addressed to the Agent Administrative Agent, the Arrangers and the Lenders, in substantially the form and substance acceptable to Agent’s counselof Exhibit G;
(ivv) A copyAn opinion of Lowndes, Drosdick, Doster, ▇▇▇▇▇▇ & ▇▇▇▇, counsel to the Loan Parties, addressed to the Administrative Agent, the Arrangers and the Lenders, regarding the enforceability of the Agreement and the other Loan Documents under the laws of the State of New York, and such other matters of New York law as the Administrative Agent may reasonably request;
(vi) The certificate of limited partnership of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationDelaware;
(vvii) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the State of Delaware and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of formation taxation, as applicable) of each state in which the Borrower is required to be so qualified;
(viii) A certificate of incumbency signed by the Secretary or Assistant Secretary of the general partner of the Borrower with respect to each of the officers of the general partner of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party and the officers of the general partner of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(ix) Copies (certified by the Secretary or Assistant Secretary of the general partner of the Borrower) of the limited partnership agreement of the Borrower and of all corporate (or comparable) action taken by the Borrower (and any of the partners of the Borrower) to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(x) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of the Parent and each other Guarantor certified as of a recent date by the Secretary of State of the State of formation of such Guarantor;
(xi) A certificate of good standing or certificate of similar meaning with respect to the Parent and each other Guarantor issued as of a recent date by the Secretary of State of the State of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vixii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower Parent and each other Guarantor with respect to each of the officers of the Borrower such Guarantor authorized to execute and deliver the Loan Documents to which the Borrower such Guarantor is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viixiii) Copies certified by the Secretary or Assistant Secretary of the Parent and each other Guarantor (or other individual performing similar functions) of the Borrower of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiv) A copy of (x) each of the documents, instruments and agreements evidencing any of the Debt described on Schedule 6.1.(h); (y) each Material Contract and (z) each of the documents, instruments and agreements evidencing any of the transactions described on Schedule 9.13., in each case certified as true, correct and complete by the chief executive officer or chief financial officer of the Parent;
(xv) The Fees Fees, if any, then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Administrative Agent, the Titled Agents Arrangers, the Syndication Agent and the Lenders on or prior to the Effective DateDocumentation Agent;
(ixxvi) A Compliance Certificate, dated Certificate calculated as of the Effective DateMarch 31, based on financial results 1999;
(xvii) An Unencumbered Property Certificate calculated as of June 30March 31, 2021 1999;
(xviii) A written description of the Consolidation outlining the proposed organizational structure, financial condition, executive management, board of directors (or other comparable body), and business plan of the Parent and its Subsidiaries, in each case, after giving pro forma effect to the financing contemplated by this Agreement Consolidation, which must be in form and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect substance satisfactory to the Unencumbered Pool as the Agent may reasonably requireLenders; and
(xiixix) Such other documents, agreements and instruments as the Administrative Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent Administrative Agent, the Arrangers and the LendersSyndication Agent:
(i) There shall not have occurred or become known to the Administrative Agent, either Arranger or the Syndication Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Parent and its Subsidiaries delivered to the Administrative Agent, the Arrangers, the Syndication Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in have a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in have a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its respective obligations under the Loan Documents to which it is a party;
(iii) The Borrower Borrower, the Parent and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (CNL American Properties Fund Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit 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 following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.8.;
(iii) The Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) An opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, counsel to the BorrowerLoan Parties, addressed to the Agent and the Lenders, substantially in the form of Exhibit F-1, and substance acceptable opinion of ▇▇▇▇▇▇▇, LLP, special Maryland and Pennsylvania counsel to Agent’s counselthe Loan Parties, addressed to the Agent and the Lenders, substantially in the form of Exhibit F-2;
(ivv) A copy, The declaration of trust of the Borrower certified as of a recent date by the appropriate officer Department of Assessments and Taxation of the State of Maryland;
(vi) A good standing certificate with respect to the Borrower issued as of a recent date by the Department of Assessments and Taxation of the State of Maryland and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is organizedrequired to be so qualified;
(vii) A certificate of incumbency signed by the Secretary or Assistant Secretary of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party and the officers of the Borrower then authorized to deliver the request for the Term Loans referred to in the immediately following clause (xvi), and a duly authorized officer Notices of Continuation and Notices of Conversion;
(viii) Copies, certified by the Secretary or similar representative Assistant Secretary of the Borrower, of all corporate (or comparable) action taken by the Borrower to be true authorize the execution, delivery and complete, performance of the corporate charter or other formation document of Loan Documents to which the Borrower as in effect on such date of certificationis a party;
(vix) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the State of formation of such Guarantor;
(x) A certificate of good standing or certificate of similar meaning with respect to the Borrower each Guarantor issued as of a recent date by the Secretary of State of the state State of formation of the Borrower each such Guarantor and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vixi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor with respect to each of the officers of the Borrower such Guarantor authorized to execute and deliver the Loan Documents to which the Borrower such Guarantor is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viixii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of the Borrower of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) A copy of (x) each of the documents, instruments and agreements evidencing any of the Indebtedness described on Schedule 6.1.(g) and (y) the Advisory Agreement, the Management Agreement and each other Material Contract, in each case certified as true, correct and complete by the chief executive officer or chief financial officer of the Borrower;
(xiv) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxv) A Compliance Certificate, dated Certificate calculated as of the Effective DateDecember 31, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date2003;
(xxvi) A letter request from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing Borrower for the termination thereof;
(xi) Such due diligence with respect Term Loans indicating how the proceeds thereof are to be made available to the Unencumbered Pool as Borrower, and if any of the Agent may reasonably requireTerm Loans initially are to be LIBOR Loans, the Interest Periods therefor; and
(xiixvii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders Lender shall not be obligated to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a fund any Loan or the issuance make any other extension of a Letter credit hereunder unless, on or before June 6, 2012, each of Credit, is subject to the following conditions precedenthas been satisfied, in the sole opinion of Lender:
(a) The Agent Borrower and each other Person that is to be a party to any Loan Document shall have received executed and delivered each of the followingsuch Loan Document, all in form and substance satisfactory to Lender.
(b) Borrower shall cause to be delivered to Lender the Agentfollowing documents, each in form and substance satisfactory to Lender:
(i) Counterparts of this Agreement executed by each A copy of the parties heretoOrganic Documents of Borrower and each Subsidiary;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) An incumbency certificate and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer resolutions of the State in which the Borrower is organized, and a duly authorized officer or similar representative board of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary directors (or other individual performing similar functionsappropriate governing body) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each other Person executing any Loan Documents, signed by a Senior Officer of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or such other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize authorizing the execution, delivery and performance of the Loan Documents Documents;
(iii) A favorable legal opinion of each Obligor’s outside legal counsel addressed to which it is a partyLender regarding such matters as Lender and its counsel may request;
(iv) A satisfactory Borrowing Base Certificate duly completed by Borrower, together with all supporting statements, schedules and reconciliations as required by Lender;
(v) Evidence of insurance, satisfactory to Lender and otherwise meeting the requirements of the Loan Documents;
(vi) Duly executed Lien Waiver/Access Agreements as required by this Agreement or any of the other Loan Documents;
(vii) Drafts of Borrower’s financial statements for its most recently concluded Fiscal Year and its most recently concluded fiscal month and such other financial reports and information concerning Borrower as Lender shall request; and
(viii) The Fees then due All additional opinions, documents, certificates and payable under Section 3.6(c)other assurances that Lender or its counsel may require.
(c) Lender shall have received, by virtue of UCC searches and/or other Lien searches, evidence satisfactory to it that there are no existing Liens with respect to any of the Collateral other than Permitted Liens.
(d) Lender shall have received a final payoff letter from any Person whose outstanding Debt is to be satisfied by remittance of proceeds from the Loans hereunder, and, if applicable, a disbursement letter shall be required to direct the payment of Loan proceeds to such Person.
(e) Lender shall have received, in form and content satisfactory to it, all appraisals of any of the Collateral that may be required by Lender and all field exams with respect to Borrower or any of the Collateral as may be required by Lender.
(f) Lender shall have received assurances, satisfactory to it, that no litigation is pending or threatened (including any litigation regarding metoclopramide) against any Obligor which Lender determines would be reasonably likely to have a Material Adverse Effect.
(g) Lender shall have determined, based upon its review of a current Borrowing Base Certificate submitted to it, that after giving effect to the initial Loans and any other Fees payable extensions of credit to the Agent, the Titled Agents be made by Lender to Borrower (including Loans in an amount sufficient to satisfy any Debt that is secured by a Lien and is to be satisfied at closing) and the Lenders on or prior payment of all Fees to the Effective Date;
(ix) A Compliance Certificate, dated Lender as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated required by this Agreement and the use reimbursement of all expenses pursuant to the Loan Documents, Borrower will have Availability of not less than the amount shown in Item 14 of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably requestTerms Schedule.
(bh) In the good faith judgment of the Agent and the Lenders:
(i) There Borrower shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except satisfied such additional conditions precedent as are set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability Item 15 of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan DocumentsTerms Schedule.
Appears in 1 contract
Sources: Loan and Security Agreement (Biosante Pharmaceuticals Inc)
Initial Conditions Precedent. The obligation obligations of the Lenders ---------------------------- Bank to effect or permit issue the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is Credit are subject to the following conditions precedent:precedent having been satisfied on or before the Date of Issuance.
(a) The Agent Bank shall have received each on or before the Date of Issuance the following in form and substance reasonably satisfactory to the Bank:
(1) copies of the followingresolutions of the Board of Directors of the Company authorizing the execution, delivery and performance of this Agreement, and all other documents to be executed by the Company on the Date of Issuance, certified by the Secretary or other officer of the Company, dated the Date of Issuance, which certificate shall state that such resolutions are in full force and effect on the Date of Issuance;
(2) a certificate, dated the Date of Issuance, of the Secretary or other officer of the Company, certifying the name and true signatures of the representatives of the Company authorized to sign this Agreement and the other documents to be delivered by the Company hereunder;
(3) a favorable opinion of the Company's counsel (which counsel shall be satisfactory to the Bank) dated the Date of Issuance, in form and substance satisfactory to the Agent:
(i) Counterparts Bank in its sole discretion and to its counsel, concerning issues involving the corporate organization of the Company, plus, at the option of the Company, the enforceability and binding aspects of this Agreement and all other closing documents, and with respect to such other matters as the Bank and its counsel shall request;
(4) an executed by copy of each of the parties heretoRelated Documents;
(ii5) Notes this Agreement duly executed and delivered;
(6) legal opinion of the Bond Counsel (which counsel shall be satisfactory to the Bank) to the effect that interest income on the Bonds shall be exempt from Federal and Massachusetts income taxation, which opinion shall be satisfactory to the Bank in its sole discretion;
(7) legal opinion of the Bond Counsel as to due authorization, execution and delivery of all documents to be executed by the BorrowerIssuer, payable and that all of the above are legal, valid, binding and enforceable, limited only by usual special obligation language, which opinion shall be satisfactory to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9Bank in its sole discretion;
(iii) An opinion 8) certified copies of counsel to the BorrowerCompany's Articles of Organization and Bylaws, addressed to the Agent good standing certificate, and the Lendersall other documents, in form including incumbency certificate and substance acceptable to Agent’s counselno default certificate;
(iv9) A copy, certified liability and property damage insurance as of a recent date by required under the appropriate officer of Indenture and the State in which Lease Agreement and acceptable to the Borrower is organized, Bank naming the Bank as loss payee and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationadditional insured;
(v10) A certificate of good standing such other legal opinions, agreements, documents or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders Bank may reasonably request.
(11) title insurance policy insuring the Bank's mortgage lien on the Project.
(b) In The following statements shall be true and correct in all material respects on the good faith judgment Date of Issuance and the Bank shall have received a certificate of the Agent and Company signed by its Secretary on behalf of the LendersCompany dated the Date of Issuance stating that:
(i1) There shall not have the representations and warranties contained in Article V hereof --------- are correct in all material respects on and as of the Date of Issuance as though made on and as of such date;
(2) no Event of Default has occurred and is continuing, or become known would result from the issuance of the Letter of Credit and no event has occurred and is continuing which would constitute an Event of Default but for the requirement that notice be given or that time elapse or both;
(3) no material adverse change has occurred in the business, prospects, results of operations or condition, financial or otherwise, of the Company since December 31, 1995, except as otherwise described to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained Bank in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders writing prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effectof Issuance;
(ii4) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability issuance of the Borrower to fulfill its obligations under Letter of Credit shall not render the Loan Documents to which it is a partyCompany insolvent;
(iii5) The Borrower the Bonds and its Subsidiaries the Letter of Credit are and shall be in compliance with all applicable securities law;
(6) the most recent financial statements submitted by the Company accurately and fairly reflect and present their financial condition and performance in all material respects.
(c) On or before the Date of Issuance, the Related Documents shall have received all approvalsbeen authorized, consents executed and waiversdelivered by the parties to such documents, and shall have made or given all necessary filings and notices, as such documents shall be required in full force and effect.
(d) Originals (or copies certified to consummate be true copies by an appropriate officer of the Company or, in the case of approvals by the Issuer, by the Executive Director, Director of Finance or Secretary of the Issuer) of all governmental and regulatory approvals necessary for the Company with respect to this Agreement and the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; andhereby.
(ive) There A letter satisfactory to the Bank addressed to the Bank from Bond Counsel (which counsel shall not have occurred be satisfactory to the Bank) allowing the Bank to rely on such counsel's favorable written opinion.
(f) Such other and further documents or exist any other material disruption of financial or capital markets that could information as the Bank may reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documentsrequest.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders Bank's willingness to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, make any Advance is subject to the following conditions precedent:
(a) The Agent condition precedent that the Bank shall have received each on or before the day of the first Advance all of the following, each dated (unless otherwise indicated) as of the date hereof, in form and substance satisfactory to the AgentBank:
(ia) Counterparts of this Agreement The Notes, properly executed by each of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative on behalf of the Borrower.
(b) The Borrower Reaffirmation, to be true and complete, properly executed on behalf of the corporate charter or other formation document Borrower.
(c) The Mortgage Amendment, properly executed on behalf of the Borrower as in effect on such date of certification;Borrower.
(vd) The Subsidiary Reaffirmation, properly executed on behalf of each Subsidiary.
(e) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation secretary of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of Subsidiary (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize certifying that the execution, delivery and performance of the Loan Documents, Subsidiary Documents and other documents contemplated hereunder to which it such corporation is a party;
(viii) The Fees then due and payable under Section 3.6(c)party have been duly approved by all necessary action of the Board of Directors of the Borrower or such Subsidiary, as the case may be, and any other Fees payable to the Agent, the Titled Agents attaching true and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as correct copies of the Effective Dateapplicable resolutions granting such approval, based on financial results as of June 30, 2021 (ii) certifying that attached to such certificate are true and after giving pro forma effect to the financing contemplated by this Agreement and the use correct copies of the proceeds articles of incorporation and bylaws of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool Borrower or such Subsidiary, as the Agent case may reasonably require; and
be, together with such copies, and (xiiiii) Such other documents, agreements and instruments as certifying the Agent on behalf names of the Lenders may reasonably request.
(b) In the good faith judgment officers of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered that are authorized to sign the Loan Documents and other documents contemplated hereunder, including requests for Advances, together with the true signatures of such officers. The Bank may conclusively rely on such certificate of the Borrower until it shall receive a further certificate of the Secretary or Assistant Secretary of the Borrower canceling or amending the prior certificate and submitting the signatures of the officers named in such further certificate.
(f) Certificates of good standing of the Borrower and its Subsidiaries, dated not more than ten days before such date.
(g) A signed copy of an opinion of counsel for the Borrower, addressed to the Agent Bank as to matters referred to in Sections 4.1, 4.2, 4.3 and 4.7, and as to such other matters as the Lenders prior Bank may reasonably request, with that opinion being acceptable to the Agreement Date Bank's counsel. In the case of Section 4.7, the opinion may be to the best knowledge of such counsel, and, in the case of Section 4.3, insofar as it relates to enforcement of remedies, it may be subject to applicable bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally from time to time, and to usual equity principles.
(h) An endorsement issued by Old Republic Title Insurance Company, formerly known as Minnesota Title Insurance Company, providing that has had or could reasonably (i) the insured mortgage under that company's Policy of Title Insurance No. B2905971 shall be expected to result in a Material Adverse Effect;
the Mortgage as amended by the Mortgage Amendment, (ii) No litigationthe effective date of such policy, actionas amended by the endorsement, suitshall be not earlier than the date of the recording of the Mortgage Amendment, investigation and (iii) that the lien of the Mortgage as amended by the Mortgage Amendment is subject to no prior encumbrances or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (exceptions except as previously set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documentspolicy.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the initial making of a Loan Loans or the issuance of a Letter of Credit, Credit hereunder is subject to the following conditions precedent:
(a) The Administrative Agent shall have received each of the followingfollowing (unless not required by the Administrative Agent in certain cases as set forth below), in form and substance satisfactory to the AgentAdministrative Agent and the Lenders:
(i) Counterparts Original counterparts of (1) this Agreement; (2) the Guaranty; (3) the Pledge and Security Agreement; (4) the Omnibus Reaffirmation Agreement; (5) to the extent required by the Administrative Agent, a Negative Pledge Agreement for each Borrowing Base Property being added as a Borrowing Base Property on such date; and (6) with respect to each Borrowing Base Property, the (A) the Environmental Indemnity, (B) to the extent required by the Administrative Agent, Property Management Agreements for each Borrowing Base Property being added on the Effective Date, if any (which may be PDF counterparts), and (C) an Assignment of Property Management Agreement for each Property Management Agreement (which may be PDF counterparts); and a Deposit Account Pledge Agreement, in each case executed and delivered by each of the parties heretohereto and thereto, as applicable;
(ii) Original Revolving Notes executed by the Borrower, payable to each Lender that has requested a Revolving Note at least one (if requested by such 1) Business Day prior to closing and an original Swingline Note in favor of the Swingline Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion Bringdown or endorsement to any existing lender’s title insurance policy, issued in favor of counsel the Administrative Agent, to the Borrower, addressed extent reasonably necessary to continue the effectiveness of the existing title insurance policies with respect to the Mortgages in effect as of the Effective Date, as determined by the Administrative Agent and (it being acknowledged that no new bringdowns or endorsements were required by the LendersAdministrative Agent);
(iv) For each Borrowing Base Property being added on the Effective Date, if any, a current survey of each Borrowing Base Property or other survey documentation acceptable to the Administrative Agent;
(v) An Appraisal of each Borrowing Base Property in form and substance acceptable to Agent’s counselthe Administrative Agent for each Borrowing Base Property that has not been appraised within the prior twelve (12) month-period and completed within sixty (60) days prior to the Effective Date, or such earlier date as the Administrative Agent shall accept[reserved];
(ivvi) A copyFor each Borrowing Base Property being added on the Effective Date, certified as of if any, a recent date by current Phase I Environmental Report, reasonably acceptable to the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationAdministrative Agent for each Borrowing Base Property;
(vvii) A Proper UCC-1 financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Collateral Documents covering the Collateral; and arrangements satisfactory to the Administrative Agent shall have been made for the recording or filing of the UCC-1 financing statements in order to perfect the Liens of the Administrative Agent in the Collateral as determined by the Administrative Agent;
(viii) To the extent requested by the Administrative Agent, a perfection certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective DateSubsidiary Guarantors;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (HC Government Realty Trust, Inc.)
Initial Conditions Precedent. The obligation obligations of the Lenders to effect or permit make the occurrence Loans comprising the initial Borrowing and of Agent to issue the first Credit Event hereunder, whether as the making of a Loan or the issuance of a initial Letter of Credit, is Credit are subject to the following conditions precedentthat:
(a) The Receipt by Agent of the final executed Membership Interest Purchase Agreement in form satisfactory to Agent in its sole discretion, together with evidence that all conditions precedent to the Membership Interest Purchase Agreement have been satisfied, including, but not limited to, receipt of all required governmental approvals;
(b) Satisfactory review and acceptance of all environmental due diligence on all assets owned or to be owned by Borrower, including the Acquired Assets, which environmental due diligence shall include (i) a review of environmental indemnities from Seller, (ii) review of all insurance coverage of Borrower related to environmental risk, (iii) review of Borrower’s corporate environmental policy, procedures and response protocols pertaining to the operational business risk, identifying current company standards and customary commercial practices within the industry to be performed by a qualified environmental consultant, (iv) delivery and subsequent review of environmental reports and/or investigations of all of the assets of Borrower, including the Acquired Assets, completed by a qualified environmental consultant acceptable to Agent, which reports and/or investigations may be reviewed by Agent’s environmental consultants;
(c) Delivery by Borrower to Agent of due diligence procedures, satisfactory to Agent in its sole discretion, with respect to the validation of the Acquisition income statement supporting the historical EBITDA, revenue, cost of sales, and operating expenses of the Acquired Assets (the “Agreed Upon Procedures”);
(d) Delivery to, and satisfactory review by, Agent and its counsel of due diligence information from Borrower regarding litigation, tax (including tax treatment of Acquired Assets), accounting, labor, insurance, pension liabilities (actual or contingent), real estate leases, material contracts, debt agreements, property ownership, environmental matters, including but not limited to environmental liabilities to Lenders from Borrower, contingent liabilities and management of Borrower and its Subsidiaries;
(e) Delivery to, and satisfactory review by, Agent of all insurance policies issued to Borrower by insurance companies reasonably acceptable to Agent;
(f) Borrower shall have received delivered to Agent, at Borrower’s sole expense, an opinion of legal counsel in form and content satisfactory to Agent to the effect that (i) the Borrower and its Subsidiaries have due authorization to executed and deliver each of the followingLoan Documents, (ii) each of the Loan Documents are legal, valid and binding instruments enforceable against the makers thereof in accordance with their respective terms, (iii) such other matters incident to the transactions contemplated hereby, as Agent may reasonably request;
(g) Borrower shall have delivered to Agent, on or prior to the Closing Date, each item listed in Schedule 3.01, each in form and substance reasonably satisfactory to the Agent:
(i) Counterparts of this Agreement executed by Agent and Lenders and with sufficient copies for Agent and each of the parties heretoLender;
(iih) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the State in No event or condition which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected likely to have a Material Adverse Effect;
(vi) A certificate Effect shall have occurred since December 31, 2012 and be continuing on the date of incumbency signed by the Secretary such initial Borrowing or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters Letter of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred The absence of any material disruption of, or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained a material change in conditions in the financial and business projectionsfinancial, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial banking or capital markets that could reasonably be expected to materially and adversely affect which Agent, in its sole discretion, deems material in connection with the transactions contemplated by syndication of the Loan DocumentsSenior Credit Facilities.
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 counterparts of this Agreement duly executed by each of the parties hereto;
(ii) Revolving Notes duly executed by the Borrower, payable to each applicable Lender (if but excluding any Lender that has requested by such Lenderthat it not receive Notes) and complying with the applicable provisions terms of Section 2.92.12(a) executed by the Borrower;
(iii) An opinion of counsel (A) the Security Agreement duly executed by each Borrower to be a party thereto, (B) all UCC financing statements in proper form for filing in the applicable filing offices, and (C) with respect to deposit accounts and securities accounts constituting Collateral, control agreements with respect thereto duly executed by the applicable Borrower, addressed to the Agent depositary bank, and the Lenders, in form and substance acceptable to Administrative Agent’s counsel;
(iv) A copyone or more opinions of counsel to the 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, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Borrower together with any amendments thereto (if any) certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative state of the formation of such Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(vvi) A a certificate of good standing or certificate of similar meaning existence with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower South Carolina and a certificate 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 the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the each Borrower with respect to each of the officers of the such Borrower authorized to execute and deliver the Loan Documents to which the such Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of requests for Letters of Credit;
(viiviii) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the each Borrower of (iA) the by-laws of such PersonBorrower, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (iiB) all corporate, partnership, member member, manager or other necessary action taken by such Person Borrower to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) The Fees then due and payable under Section 3.6(c), and any other Fees payable to a Borrowing Base Certificate calculated as of the Agent, the Titled Agents and the Lenders on or prior to the Effective Agreement Date;
(ixx) A Compliance Certificate, dated as a certificate from a Responsible Officer of the Effective Date, based on financial results as of June 30, 2021 and each Borrower certifying that after giving pro forma effect to the financing transactions contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder Date that such Borrower and providing for the termination thereofits Subsidiaries, on a consolidated basis, are Solvent;
(xi) Such 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, if any, then due diligence and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xvii) with respect to each Borrowing Base Property identified on Schedule 4.1, each of the Unencumbered Pool 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 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
(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 may reasonably requirefor 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 transactions occurring on the Effective Date and a pro forma balance sheet of UHG and its Subsidiaries as of the Effective Date giving pro forma effect to the transactions occurring on the Effective Date and (C) projections prepared by management of balance sheets, income statements and cash flow statements of UHG and its Subsidiaries, which will be quarterly for the first year after the Effective Date and quarterly thereafter through the Maturity Date (and which will not be inconsistent with information provided to the Administrative Agent prior to the delivery of the Borrower’s commitment letter with the Administrative Agent); and
(xiixxii) Such such other documents, agreements and instruments as the Agent on behalf of Administrative Agent, or any Lender through the Lenders Administrative Agent, may reasonably request.;
(b) In the good faith judgment of the Agent and the Lenders:
(i) There there shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsMarch 31, budgets2023, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1A) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect affect, the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) The the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1A) any Applicable Law or (2B) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its 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 documents evidencing the Convertible Debt);
(Ae) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower shall have provided all information requested by the Administrative Agent and each Lender in order to fulfill its obligations under comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Loan Documents to which it is a partyPatriot Act and the Beneficial Ownership Regulation; and
(ivf) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of any Issuing Bank to issue the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a initial Letter of Credit, Credit and the obligation of each Lender to make its initial Advance pursuant to the terms and conditions of this Agreement is subject to the following conditions precedent:
(a) The condition precedent that the Administrative Agent shall have received each on or before the day of the initial Advance (or, if earlier, the day of issuance of the initial Letter of Credit) the following, each dated on or before such day, in form and substance reasonably satisfactory to the Agent:Administrative Agent (the first day when all such conditions have been satisfied or waived is hereinafter referred to as the “Effective Date”):
(ia) Counterparts of Duly executed signature pages to this Agreement executed (including by each facsimile or other electronic means) in a sufficient number of signed counterparts as requested by the parties hereto;Administrative Agent and any Notes requested pursuant to Section 2.02(f) prior to the Effective Date.
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(vb) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or an Assistant Secretary of each Borrower certifying (or other individual performing similar functionsi) the resolutions of the board of directors of such Borrower with respect to authorizing the execution of each of the officers of the Borrower authorized to execute and deliver the Loan Documents Credit Document to which the such Borrower is a party, (ii) the charter, bylaws or other applicable organizational documents of such Borrower and (iii) all other documents evidencing any necessary company action and governmental, shareholder and third-party consents, approvals and filings, if any, with respect to each such Credit Document and the transactions thereunder.
(c) A certificate of the Secretary or an Assistant Secretary of each Borrower certifying the names and true signatures of the officers (or agents) authorized to sign each Credit Document to be executed by it.
(d) An opinion of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special counsel for Pride, and if applicable, Guarantors, substantially in the form of Exhibit D, and an opinion of ▇▇▇▇▇▇ and Calder, special counsel for BVI Borrower, substantially in the form of Exhibit D-1.
(e) An opinion of the general counsel of Pride, and if applicable, Guarantors, substantially in the form of Exhibit E.
(f) Certificates of existence, good standing and qualification with respect to the Borrowers from appropriate public officials in the jurisdictions of organization of the Borrowers.
(g) A certificate of an officer of each Borrower authorized (i) certifying that the representations and warranties made by such Borrower in each Credit Document are correct, (ii) certifying as to deliver Notices the satisfaction of Borrowingall conditions set forth in this Section 3.01 and (iii) with respect to the certificate for Pride, Notices describing in reasonable detail the insurance maintained by Pride and its Subsidiaries on the date hereof as required by Section 5.01(c) and certifying that such insurance complies with Section 5.01(c) and is in full force and effect.
(h) Evidence of Continuation payment by the Borrowers of all fees and Notices disbursements required to be paid by the Borrowers on the date hereof.
(i) Evidence of Conversion the termination of the Existing Credit Facility and to request the commitments thereunder and payment in full of all amounts owed thereunder (which termination and repayment may be contemporaneous with the satisfaction of the conditions under this Section 3.01 and the application of the proceeds of any Advances and the issuance of any Letters of Credit;Credit that occur on the Effective Date).
(viij) Copies certified All documentation and other information that the Borrowers are required by bank regulatory authorities to deliver to the Issuing Banks, the Lenders and the Administrative Agent under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the Patriot Act, that has been identified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporationIssuing Banks, the operating agreement of such Person, if a limited liability company, Lenders and the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity Administrative Agent and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable notified to the Agent, the Titled Agents and the Lenders on or Borrowers prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Revolving Credit Agreement (Pride International Inc)
Initial Conditions Precedent. The obligation of each Bank to make Advances and the Lenders to effect or permit the occurrence obligation of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter L/C Issuers to issue Letters of Credit, pursuant to the terms and conditions of this Agreement, is subject to the following conditions precedentprecedent that the Administrative Agent shall have received the following, each dated on or before the date hereof, in form and substance reasonably satisfactory to the Administrative Agent:
(a) The Agent shall have received each of the followingThis Agreement, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the BorrowerBorrower and each Bank, and, to the extent requested by any Bank within three (3) Business Days of the closing date hereof, an executed Note payable to each Lender (if requested by the order of such Lender) and complying with the applicable provisions of Section 2.9;Bank, respectively.
(iiib) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer Certified copies of the State in which resolutions of the Board of Directors of the Borrower is organizedapproving this Agreement, each Note, each Letter of Credit Application, each Letter of Credit and each Notice of Borrowing, and a duly authorized officer or similar representative of all documents evidencing other necessary corporate action with respect to each such Loan Document and certified copies of the restated certificate of incorporation and bylaws of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;.
(vc) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation or an Assistant Secretary of the Borrower certifying the names and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each true signatures of the officers of the Borrower authorized to execute and deliver the sign each Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents Document to which it is a party;party and the other documents to be delivered hereunder.
(viiid) The Fees then due A favorable opinion of Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., counsel for the Borrower, to be delivered to, and payable under Section 3.6(cfor the benefit of, the Banks and the Administrative Agent, at the express instruction of the Borrower.
(e) A favorable opinion of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇, Senior Vice President and General Counsel of the Borrower, to be delivered to, and for the benefit of, the Banks and the Administrative Agent, at the express instruction of the Borrower.
(f) A certificate of a Responsible Officer of the Borrower certifying (i) there has not occurred a material adverse change since December 31, 2010 in the consolidated financial condition of the Borrower and its Subsidiaries taken as a whole, (ii) there has not occurred a material adverse change since June 30, 2011 in the business, assets, liabilities (actual or contingent), and any operations or condition (other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixthan financial) A Compliance Certificate, dated as of the Effective DateBorrower and its Subsidiaries taken as a whole, based on and (iii) compliance with the financial results covenant set forth in Section 5.2(c) as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;2011.
(xg) A letter from the agents All documentation required to comply with all “know-your-client” requirements under AML Legislation in relation to each Obligor and this Agreement, as determined by each Total Facility Bank in respect of such Total Facility Bank’s compliance, acting reasonably.
(h) Termination of all commitments and payment of all amounts due under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request2005 Credit Agreement.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any Termination of the Lenders any event, condition, situation or status since the date all commitments and payment of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations all amounts due under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan DocumentsExisting 2010 Credit Agreement.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, Borrower payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.11, Competitive Advance Notes executed by the Borrower payable to each Lender, and the Swingline Note executed by the Borrower payable to the Agent (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyfavorable opinion of counsel to the Obligors, certified addressed to the Agent, the Lenders and the Swingline Lender, addressing such matters as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationAgent may require;
(v) A certificate The Governing Documents of good standing Borrower, each Guarantor and each general partner, managing member (or certificate Person performing similar functions) of similar meaning with respect to the Borrower issued such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vi) A good standing certificate with respect to Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Unencumbered Assets owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation Swingline Borrowings and Notices of Conversion Competitive Bid Requests and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiiix) A copy of (x) the detailed description of the Indebtedness of the Borrower, the other Obligors and their respective Subsidiaries included in the most recently published 10Q, 10K and a Quarterly Supplemental Package (substantially in the form provided to Agent prior to the date hereof), and (y) each Material Contract, in each case certified as true, correct and complete by the chief operating officer or chief financial officer of the Borrower;
(x) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixxi) A Compliance Certificate, dated Certificate calculated as of the Effective DateSeptember 30, based on financial results 2003 and a draft of a Compliance Certificate calculated as of June 30December 31, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require2003; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Borrower, the other Obligors, and its their respective Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(iii) The Borrower Borrower, the other Obligors and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The effectiveness of this Agreement and obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, Borrower payable to each Lender (if other than any Lender that has requested by such Lendernot to receive a Note) and complying with the applicable provisions of Section 2.92.10 (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An The Guaranty executed by each Guarantor in existence as of the Effective Date;
(iv) A favorable opinion of counsel to the BorrowerObligors, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified addressing such matters as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationAgent may reasonably require;
(v) A certificate The Governing Documents of good standing the Borrower, each Guarantor and each general partner, managing member (or certificate Person performing similar functions) of similar meaning with respect to the Borrower issued such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vi) A good standing certificate with respect to the Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Unencumbered Assets owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditConversion;
(viiviii) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiiix) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixx) A pro forma Compliance CertificateCertificate calculated as of March 31, dated 2015;
(xi) A certificate signed by a Responsible Officer of the Borrower certifying that each Property to be treated as an Unencumbered Asset on the Effective Date satisfies all of the requirements for an Unencumbered Asset set forth in the definition thereof;
(xii) The documentation and other information requested by any Lender that is required by regulatory authorities under the applicable “know your customer” rules and regulations and anti-money laundering rules and regulations including, without limitation, the Patriot Act;
(xiii) A Disbursement Instruction Agreement effective as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiixiv) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsMarch 31, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date 2015 that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(iii) The Borrower Borrower, the other Obligors and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(iv) There The Amendment and Restatement Transaction shall not have occurred become effective prior to or exist any other material disruption of financial or capital markets that could substantially simultaneously herewith on terms and conditions reasonably be expected satisfactory to materially and adversely affect the transactions contemplated by the Loan DocumentsAgent in its discretion.
Appears in 1 contract
Sources: Term Loan Agreement (Columbia Property Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan any Revolving Loans, or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions terms of Section 2.92.1O.
(a) and (b);
(iii) An opinion of Massachusetts counsel to the Borrower, addressed to the Administrative Agent, Documentation Agent and the Lenders, in substantially the form and substance acceptable to Agent’s counselof Exhibit M;
(iv) A copy, all of the documents and information required to be delivered under Section 4.1.(a) with respect to each of the Real Property Assets listed on Schedule 4.1.;
(v) the organizational documents of the Borrower certified as of a recent date by the appropriate applicable Governmental Authority if filed and by a senior officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationif not filed;
(vvi) A certificate of a good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viiviii) Copies certified copies (certified by the Secretary or Assistant Secretary of the Borrower) of all action taken by the Borrower's governing body to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) A Guaranty executed by each Guarantor in substantially the form of Exhibit C;
(x) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the state of formation of such Guarantor;
(xi) A certificate of good standing or certificate of similar meaning with respect to each Guarantor which owns one or more Unencumbered Pool Properties issued as of a recent date by the Secretary of State of the state of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which Guarantor is required to be so qualified;
(xii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the Borrower officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xiii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of (i) the by-by- laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiv) The Fees then due A copy of each of the documents, instruments and payable under Section 3.6(c)agreements evidencing any of the Indebtedness described on Schedule 7.1(g) marked with an asterisk on such Schedule and a copy of each Material Contract, certified as true, correct and any other Fees payable to complete by the Agent, chief financial officer of the Titled Agents and the Lenders on or prior to the Effective DateBorrower;
(ixxv) Evidence that all insurance required to be maintained by the Borrower and the other Loan Parties under the terms of the Loan Documents is in effect;
(xvi) The Fees, if any, then due under Section 3.6.;
(xvii) A Compliance Certificate, dated Certificate calculated as of the Effective Datefiscal quarter ending February 28, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require1998; and
(xiixviii) Such other documents, agreements and instruments as the Administrative Agent or the Documentation Agent may reasonably request on behalf of the Lenders may reasonably request.Lenders; and
(b) In the good faith judgment of the Administrative Agent, the Documentation Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent Agents or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to any of the Agent Agents and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions 50 contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not could reasonably be likely expected to have to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Mgi Properties)
Initial Conditions Precedent. The obligation of the Lenders MBF shall not be obligated to effect or permit the occurrence of the purchase any Mortgage Loan under this Agreement until MBF shall have first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to received the following conditions precedent:
(a) The Agent shall have received documents, each of the following, which shall be in form and substance satisfactory to MBF, except to the Agentextent waived by MBF in its sole discretion:
(ia) Counterparts of this Agreement and the Seller’s Power of Attorney, each duly executed by Seller, and the Guaranty, duly executed by Guarantor, each dated as of the parties heretodate hereof;
(iib) Notes executed by one or more certificates of Seller’s corporate secretary attesting to certain factual matters, certifying the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions text of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to AgentSeller’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing articles or certificate of similar meaning with respect to incorporation and bylaws, certifying the Borrower issued as of a recent date by the Secretary of State text of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functionsresolution(s) of the Borrower with respect to each board of the officers directors of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize Seller authorizing the execution, delivery and performance of this Agreement, and certifying the Loan Documents incumbency and the signatures of those officers of Seller authorized to execute and deliver, on behalf of Seller, this Agreement, each Mortgage Note endorsement, each Assignment in Blank, and all other instruments or documents to be executed and delivered pursuant hereto (MBF being entitled to rely thereon until a new certificate has been furnished to MBF upon which it is a partyMBF shall thereafter be entitled to rely);
(viiic) The Fees then due and payable under Section 3.6(c)financial statements of Seller (and, and any other Fees payable to the Agentif applicable, the Titled Agents and the Lenders its Subsidiaries, on or prior to the Effective Date;
(ixa consolidated basis) A Compliance Certificate, dated containing a balance sheet as of the Effective most recent fiscal year-end of Seller (the “Statement Date”) and related statements of income, changes in stockholders’ equity and cash flows for the period ended on the Statement Date, based on financial results and a balance sheet as of June 30the Interim Date and related statement of income for the period ended on the Interim Date, 2021 and after giving pro forma effect to all prepared in accordance with GAAP applied on a basis consistent with prior periods and, in the financing contemplated by this Agreement and the use case of the proceeds statements as of the Loans Statement Date, audited by independent certified public accountants of recognized standing acceptable to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requireMBF; and
(xiid) Such such other documentsfinancial statements, agreements public record search reports, legal opinions and instruments other documents and statements as the Agent on behalf of the Lenders MBF may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations require under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documentscircumstances.
Appears in 1 contract
Sources: Mortgage Loan Purchase and Sale Agreement (National Credit & Guaranty CORP)
Initial Conditions Precedent. The obligation of the Lenders Issuing Bank to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a issue any Letter of Credit, is Credit and the obligation of each Bank to make Advances pursuant to the terms and conditions of this Agreement are subject to the following conditions precedent:
(a) The condition precedent that the Administrative Agent shall have received each on or before the day of the initial Advance (or, if earlier, the day of issuance of the initial Letter of Credit) the following, each dated on or before such day, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts of this This Agreement executed by each of Borrower, each Bank, the parties hereto;
Issuing Bank, and the Administrative Agent, (ii) the Notes (if any) payable to the order of the Banks, respectively, executed by the Borrowerrespective Borrowers, payable to each Lender and (if requested iii) the Guaranty executed by such Lender) and complying with the applicable provisions of Section 2.9;Parent.
(iiib) An opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, in-house counsel to for the Borrower, addressed to the Agent and the LendersBorrowers, in form and substance acceptable reasonably satisfactory to the Administrative Agent’s counsel;.
(ivc) A copyAn opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, certified as of a recent date by counsel for the appropriate officer of Borrowers, in form and substance reasonably satisfactory to the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;Administrative Agent.
(vd) A certificate An opinion of good standing or certificate of similar meaning with respect ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for EOIC, in form and substance reasonably satisfactory to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;Administrative Agent.
(vie) A certificate Certified copies of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Personall governmental approvals, if a corporationany, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person for each Borrower to authorize the execution, delivery and performance of enter into the Loan Documents to which it is a party;party and perform its obligations thereunder.
(viiif) The Fees then due A certificate of the Secretary or an Assistant Secretary of each Borrower certifying (i) the resolutions of the Board of Directors of such Borrower approving this Agreement, the other Loan Documents, and payable under the transactions contemplated hereby, in each case evidencing any necessary company action, (ii) the name and true signature of an agent or agents of each Borrower authorized to sign each Loan Document to which such Borrower is a party and the other documents to be delivered hereunder, and (iii) attached true and correct copies of the Bylaws and Articles of Incorporation (or corresponding organizational documents) of such Borrower.
(g) A certificate of the chief executive officer or the chief financial officer of the Parent certifying that (i) insurance complying with Section 3.6(c5.01(d) is in full force and effect, (ii) no Material Adverse Change has occurred since December 31, 2004, (iii) no Default or Event of Default exists, (iv) all representations and warranties made by the Borrowers in Section 4.01 are correct in all material respects on and as of the date of the initial Advances (other than those representations and warranties that expressly relate solely to a specific earlier date, which shall be correct in all material respects as of such earlier date), and any other Fees payable (v) the attached annual audited financials for the fiscal year ended December 31, 2004 and the attached quarterly unaudited financials for the fiscal quarter ended March 31, 2005 are true and correct copies of such financials, fairly present the financial condition of the Parent as of such dates, and were, to the Agentbest of such officer’s knowledge, the Titled Agents and the Lenders on or prior to the Effective Date;prepared in conformity with GAAP.
(ixh) A Compliance CertificateCertificates of existence, dated as of the Effective Date, based on financial results as of June 30, 2021 good standing and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter qualification from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence appropriate state officials with respect to the Unencumbered Pool Parent, and such corresponding certificates or other documents from Cayman Islands officials or agencies as the Administrative Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably requestrequests with respect to EOIC.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known Evidence of payment by the Borrowers of all fees and disbursements required to be paid by the Borrowers on the date hereof, including the fees and expenses of counsel to the Agent or any of Administrative Agent, the Lenders any eventSyndication Agent, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan DocumentsJoint Lead Arrangers.
Appears in 1 contract
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, this Agreement is subject to satisfaction of the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions terms of Section 2.9Sections 2.9.(a) and (b);
(iii) An opinion of Bake▇ & ▇ost▇▇▇▇▇ ▇▇▇, counsel to the Borrower, addressed to the Agent and the Lenders, in substantially the form and substance acceptable to Agent’s counselof Exhibit H;
(iv) A copyAn opinion of Kenn▇▇▇ ▇▇▇i▇▇▇▇▇ ▇▇▇d▇▇▇ & ▇ick▇▇▇, ▇.L.P., counsel to the Borrower, addressed to the Agent and the Lenders, regarding the enforceability of the Agreement and the other Loan Documents under the laws of the State of North Carolina, and such other matters of North Carolina law as the Agent may reasonably request;
(v) The Certificate of Incorporation of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationDelaware;
(vvi) A certificate of long form good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state State of formation of the Borrower Delaware and a certificate either (x) certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where or (y) other evidence satisfactory to the failure Agent as to be so qualified could reasonably be expected the Borrower's qualification to have a Material Adverse Effecttransact business in each such state;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditConversion;
(viiviii) Copies (certified by the Secretary or Assistant Secretary (or other individual performing similar functionsof the Borrower) of the bylaws of the Borrower and of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary corporate action taken by such Person the Borrower to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) The Fees then due A copy of (x) each of the documents, instruments and payable under Section 3.6(cagreements evidencing any of the Indebtedness described on Schedule 7.1.(g); (y) each Material Contract and (z) each of the documents, instruments and agreements evidencing any other Fees payable to of the Agenttransactions described on Schedule 10.12., in each case certified as true, correct and complete by the Titled Agents and chief executive officer or chief financial officer of the Lenders on or prior to the Effective DateBorrower;
(ixx) Evidence that all insurance required to be maintained by the Borrower and the Subsidiaries under the terms of the Loan Documents is in effect;
(xi) The Fees, if any, then due under Section 3.6.;
(xii) All accrued but unpaid interest owing under the Existing Credit Agreement;
(xiii) All accrued but unpaid fees owing under the Existing Credit Agreement;
(xiv) A Compliance Certificate, dated Certificate calculated on a pro forma basis as of the Effective Date, Agreement Date based on financial results as of June information for the fiscal quarter ending September 30, 2021 and after 1998, adjusted pro forma to November 6, 1998, giving pro forma effect to the financing contemplated by this Agreement and the use consummation of the proceeds of the Loans to be funded on the Effective Datetransactions contemplated hereby;
(xxv) A letter from a Collateral Pool Certificate calculated as of September 30, 1998, adjusted pro forma to November 6, 1998, giving pro forma effect to the agents under consummation of the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereoftransactions contemplated hereby;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiixvi) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each applicable Lender (including any Designated Lender, if applicable) (other than any Lender that has requested by such Lenderthat it not receive a Revolving Note or Bid Rate Note) and complying with the applicable provisions terms of Section 2.92.11.(a), and the Swingline Note executed by the Borrower;
(iii) An opinion the Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyan opinion of King & Spalding LLP, certified as of a recent date by the appropriate officer of the State in which counsel to the Borrower is organizedand the other Loan Parties, addressed to the Administrative Agent, the Lenders, the Swingline Lender and a duly authorized officer or similar representative of the Borrower, to be true Issuing Bank and complete, of covering the corporate charter or other formation document of the Borrower as matters set forth in effect on such date of certificationExhibit O;
(v) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower GP Sub with respect to each of the officers of the Borrower GP Sub authorized to execute and deliver on behalf of the Borrower the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower GP Sub then authorized to deliver deliver, on behalf of the Borrower, Notices of Borrowing, Notices of Swingline Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vi) copies, certified by the Secretary or Assistant Secretary of GP Sub, of (i) the partnership agreement of the Borrower and (ii) all corporate (or comparable) action taken by GP Sub to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(vii) Copies the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party;
(viii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party;
(ix) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower (unless otherwise delivered pursuant to clause (v) above), authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(x) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party of (iA) the by-laws of such PersonLoan Party, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (iiB) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixi) The Fees evidence that the Fees, if any, then due and payable under Section 3.6(c)3.5., together with all other fees, expenses and any other Fees reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been paid;
(xii) a Compliance Certificate calculated on a pro forma basis for the Titled Agents and Borrower’s fiscal quarter ended September 30, 2010;
(xiii) a Transfer Authorizer Designation Form effective as of the Lenders on or prior to the Effective Agreement Date;
(ixxiv) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such such other documents, agreements and instruments as the Agent on behalf of Administrative Agent, or any Lender through the Lenders Administrative Agent, may reasonably request.; and
(b) In the good faith judgment of the Agent and the LendersAdministrative Agent:
(i) There there shall not have occurred since December 31, 2009, any circumstance or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date condition that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1A) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1A) any Applicable Law or (2B) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, enjoin impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There the Borrower and each other Loan Party shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated provided all information requested by the Loan DocumentsAdministrative Agent and each Lender in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders DIP Lender to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a make its initial DIP Loan or the issuance of a Letter of Credit, hereunder is subject to satisfaction of the following conditions precedent:
(a) The Agent shall have received each DIP Lender’s receipt of the following, each of which shall be originals (or telecopies or portable document format (PDF) copies, in each case followed promptly by originals) each properly executed by a Responsible Officer of the signing Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the AgentDIP Lender:
(i) Counterparts executed counterparts of this Agreement executed by each of the parties heretoand all Collateral Documents;
(ii) Notes executed by delivery to the Borrower, payable DIP Lender of any certificated securities representing equity interests pledged to each the DIP Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9pursuant to any pledge agreement;
(iii) An opinion a Note executed by Borrowers in favor of counsel the DIP Lender;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as the DIP Lender may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Borrower is a party;
(v) a certificate signed by a Responsible Officer of each of the Borrowers certifying that the conditions specified in Section 4.2(a) and (b) have been satisfied;
(vi) evidence satisfactory to the Borrower, addressed DIP Lender that all insurance required to be maintained pursuant to the Agent Loan Documents has been obtained and is in effect; and
(vii) resignations in form and substance satisfactory to the DIP Lender signed (but undated) by each of the five directors designated or appointed by any Borrower of each property owner’s or home owner’s association with respect to the Project.
(b) Each of the Interim Borrowing Order and the LendersCash Management Order shall have been entered, shall be in full force and effect, and shall not have been reversed, vacated or stayed, or modified without the prior written consent of the DIP Lender, and all other necessary consents and approvals to the transactions contemplated hereby shall have been obtained and shall be reasonably satisfactory to the DIP Lender.
(c) The DIP Lender shall have received the initial Approved Budget which shall be in form and substance satisfactory to the DIP Lender.
(d) All motions and other documents to be filed with and submitted to the Bankruptcy Court in connection with this Agreement (including, without limitation, the DIP Orders) shall be in form and substance reasonably satisfactory to the DIP Lender.
(e) Receipt by the DIP Lender of an environmental indemnity agreement in form and substance acceptable to Agent’s counsel;the DIP Lender executed by Borrowers and by ▇▇▇▇ ▇▇▇▇▇▇▇, in his individual capacity, as to all environmental and permitting matters within his actual knowledge on the Closing Date.
(ivf) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is Any fees required to be so qualified and where paid to the failure to be so qualified could reasonably be expected to DIP Lender on or before the Closing Date shall have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary been paid (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of shall be paid from the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably requestinitial DIP Loan).
(bg) In Borrowers shall have paid (or shall pay from the good faith judgment proceeds of the Agent initial DIP Loan) all fees, charges and disbursements of counsel to the DIP Lender to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrowers and the Lenders:DIP Lender).
(ih) There The Closing Date shall not have occurred on or become known to the Agent or any of the Lenders any eventbefore , condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents2010.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans pursuant to Section 2.1. is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if other than any Lender that has requested by such Lenderthat it not receive a Note) and complying with the applicable provisions of Section 2.92.8.;
(iii) The Guaranty executed by the Parent and any Material Subsidiary existing as of the Effective Date;
(iv) An opinion of the general counsel of the Parent and the other Loan Parties, addressed to the Agent and the Lenders addressing the matters set forth in Exhibit F;
(v) An opinion of ▇▇▇▇▇▇ & Bird, LLP, counsel to the BorrowerAgent, addressed to the Agent and the Lenders, in form addressing the enforceability of the Loan Documents and substance acceptable to Agent’s counselsuch matters as the Agent shall reasonably request;
(ivvi) A copya certificate of incumbency signed by the Secretary or Assistant Secretary of the Parent with respect to each of the officers of the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which the Parent or the Borrower is a party and to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower the Notice of Borrowing, Notices of Conversion, and Notices of Continuation;
(vii) a certified copy (certified by the Secretary or Assistant Secretary of the Parent) of all necessary action taken by the Parent to authorize the execution, delivery and performance of the Loan Documents to which either the Parent or the Borrower is a party;
(viii) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Parent, the Borrower and each Guarantor, certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, formation of the corporate charter or other formation document of the Borrower as in effect on such date of certificationPerson;
(vix) A certificate a Certificate of good standing Good Standing or certificate of similar meaning with respect to the Parent, the Borrower and each Guarantor (and in the case of a limited partnership, the general partner of such Guarantor) issued as of a recent date by the Secretary of State of the state State of formation of the Borrower each such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vix) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor with respect to each of the officers of the Borrower such Person authorized to execute and deliver the Loan Documents to which the Borrower such Person is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viixi) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Parent, the Borrower and each Guarantor of (i) the by-laws of such Person, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and entity;
(iixii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor of all corporate, partnership, member or other necessary action taken by such Person each Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) The the Fees then due and payable under Section 3.6(c), 3.6. and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxiv) A a Compliance Certificate, dated as of the Effective Date, based on financial results Certificate calculated as of June 30, 2021 and after 2011, giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(xxv) A letter a statement from the agents agent under each of the Existing Agreement Credit Agreements providing information regarding the payment in full of all amounts outstanding thereunder and providing for under each of the termination thereofExisting Credit Agreements as of the Effective Date;
(xixvi) Such due diligence with respect the Notice of Borrowing from the Borrower for the Loans indicating how the proceeds thereof are to be made available to the Unencumbered Pool as Borrower, and if any of the Agent may reasonably requireLoans initially are to be LIBOR Loans, the Interest Period thereof; and
(xiixvii) Such such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (Corporate Office Properties Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each Lender (or Designated Lender, if requested by such Lenderapplicable) and complying with the applicable provisions of Section 2.92.11., and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyAn opinion of legal counsel to the Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, substantially in the form of Exhibit M;
(v) The articles of incorporation of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative state of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationits incorporation;
(vvi) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower its incorporation and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary or Assistant Secretary of the Borrower, of (i) the bylaws of the Borrower and (ii) all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(ix) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the state of formation of such Guarantor;
(x) A certificate of good standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by the Secretary of State of the state of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(xi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the Borrower officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxiv) A Compliance Certificate, dated Certificate calculated as of the Effective Date[March 31, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require2005]; and
(xiixv) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.;
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (United Dominion Realty Trust Inc)
Initial Conditions Precedent. The effectiveness of this Agreement, and the obligation of Lender to make the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, initial Advance hereunder is subject to the satisfaction or waiver of the following conditions precedent:; provided, however, disbursement of the first Advance shall constitute Lender’s acknowledgement that all of the following conditions have been satisfied or waived.
(a) The Agent Lender shall have received each of the following, in form and substance satisfactory to the AgentLender:
(i) Counterparts counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes the Note executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An a Hazardous Materials Indemnity Agreement executed by Borrower;
(iv) an opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to AgentLender, addressed to Lender and providing an opinion to the effect that: (A) upon due authorization, execution and recordation or filing as may be specified in the opinion, each of the Loan Documents shall be legal, valid and binding instruments, enforceable against the makers thereof in accordance with their respective terms; (B) Borrower is duly formed and has all requisite authority to enter into the Loan Documents; (C) none of the execution and delivery of the Loan Documents on behalf of Borrower, the payment of Borrower’s counselobligations under the Loan Documents, nor the creation of the liens and security interests purported to be created by the Loan Documents (1) violates any provision of Borrower’s organizational documents, (2) violates any law applicable to Borrower, or (3) results in a breach or violation of, or constitutes a default under, any term of any agreement or instrument of Borrower, (D) upon due recordation of the Deeds of Trust and each related UCC-1 Financing Statement, Lender shall have a perfected security interest in each Borrowing Base Property, and (E) such other matters, incident to the transactions contemplated hereby, as Lender may reasonably request;
(ivv) A copythe certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the formation of Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(vvi) A a certificate of good standing (or certificate of similar meaning meaning) with respect to the Borrower issued as of a recent date by the Secretary of State of the state State of formation of the Borrower and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vivii) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) or other comparable document of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditAuthorized Signatories;
(viiviii) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (iA) the Borrower’s by-laws of such Personlaws, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (iiB) all corporate, partnership, member corporate or other necessary action taken by such Person Borrower to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective DateDocuments;
(ix) A a Compliance Certificate, dated Certificate calculated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from a Borrowing Base Report calculated as of the agents under Effective Date, based upon the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereofinitial Borrowing Base Properties;
(xi) Such due diligence with respect to each Project identified on Schedule 4.1(a), all requirements for being an Eligible Property have been satisfied;
(xii) evidence satisfactory to Lender that the Unencumbered Pool as Fees, if any, then due and payable under Section 3.2, together with all other fees, expenses and reimbursement amounts due and payable to Lender, including without limitation, the Agent may reasonably requirefees and expenses of counsel to Lender, have been paid or will be paid with the first Advance;
(xiii) evidence satisfactory to Lender that Borrower has obtained Property Insurance for each Project in accordance with Section 7.6(b); and
(xiixiv) Such such other documents, agreements documents and instruments as the Agent on behalf of the Lenders Lender may reasonably request.
(b) In the good faith judgment of the Agent and the LendersLender:
(i) There shall not have occurred or become known to the Agent or any of the Lenders Lender any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders Lender prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1A) result in a Material Adverse Effect or (B) restrain or enjoin, impose burdensome conditions on, or otherwise affect the ability of Borrower to fulfill its obligations under the Loan Documents; and
(iii) Borrower shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which Borrower is a party or by which Borrower or its properties is bound, except as set forth in Schedule 6.1(i))for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Revolving Credit Agreement (TRI Pointe Homes, Inc.)
Initial Conditions Precedent. The obligation obligations of the Lenders Agent to effect or permit issue the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is Credit are subject to the following conditions precedent:precedent having been satisfied on or before the Date of Issuance.
(a) The Agent shall have received each on or before the Date of Issuance the following in form and substance reasonably satisfactory to the Agent:
(1) copies of the followingresolutions of the Board of Directors of each Borrower or its Executive Committee authorizing the execution, delivery and performance of this Agreement, and all other documents to be executed by Borrowers on the Date of Issuance, certified by the Secretary of such Borrower, dated the Date of Issuance, which certificate shall state that such resolutions are in full force and effect on the Date of Issuance;
(2) certificates, dated the Date of Issuance, certifying the name and true signatures of the representatives of the Borrowers authorized to sign this Agreement and the other documents to be delivered by the Borrowers hereunder;
(3) favorable opinions of the Borrowers' counsel (which counsel shall be satisfactory to the Agent) dated the Date of Issuance, in form and substance satisfactory to the Agent:
(i) Counterparts Agent in its sole discretion and to its counsel, concerning issues involving the organization of the Borrowers, plus, the enforceability and binding aspects of this Agreement and all other closing documents, and with respect to such other matters as the Agent and its counsel shall reasonably request;
(4) an executed by copy of each of the parties heretoRelated Documents;
(ii5) Notes this Agreement duly executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9delivered;
(iii6) An a legal opinion of counsel to the Borrower, addressed Issuer (which counsel shall be satisfactory to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request effect that the issuance of Letters the Letter of Credit;
(vii) Copies certified by Credit will not adversely affect the Secretary exclusion of interest on such Bonds from gross income for federal and North Carolina income tax purposes and that payments of principal or Assistant Secretary (or other individual performing similar functions) the Purchase Price of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders interest on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of Bonds from the proceeds of the Loans Letter of Credit will not constitute an avoidable preference under the Federal Bankruptcy Code if an Act of Bankruptcy occurs, which opinion shall be satisfactory to be funded on the Effective DateAgent in its sole discretion;
(x7) A letter from a legal opinion of counsel to the agents under Issuer as to due authorization, execution and delivery of all documents to be executed by the Existing Agreement providing information regarding Issuer, and that all of the payment above are legal, valid, binding and enforceable against the Issuer, limited only by usual special obligation language and customary exceptions, which opinion shall be satisfactory to the Agent in full of amounts outstanding thereunder and providing for the termination thereofits sole discretion;
(xi8) certified copies of each Borrower's Articles of Incorporation and by-laws, good standing certificates for such Borrower, and all other documents, including incumbency certificates and no default certificates;
(9) Such due diligence with respect evidence satisfactory to the Unencumbered Pool Agent that each Borrower is in compliance in all material respects with all applicable foreign, U.S. federal, state and local laws and regulations, including all applicable environmental laws and regulations;
(10) such other legal opinions, agreements, documents or information as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In The following statements shall be true and correct in all material respects on the good faith judgment Date of Issuance and the Agent and shall have received a certificate signed by a duly authorized representative of each Borrower, each dated the LendersDate of Issuance stating that:
(i1) There shall not have occurred or become known to the Agent or any representations and warranties contained in Article V hereof are correct in all material respects on and as of the Lenders any eventDate of Issuance as though made on and as of such date;
(2) no Event of Default has occurred and is continuing, or would result from the issuance of the Letter of Credit and no event has occurred and is continuing which would constitute an Event of Default but for the requirement that notice be given or that time elapse or both;
(3) no material adverse change has occurred in the business, prospects, results of operations or condition, situation financial or status otherwise, of the Borrowers since the date of the information contained in the most recent financial and business projectionsstatements delivered to Agent by Borrowers, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered except as otherwise described to the Agent and the Lenders in writing prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effectof Issuance;
(ii4) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability issuance of the Letter of Credit or the making of any Demand Loan, shall not render any Borrower to fulfill its obligations under the Loan Documents to which it is a partyinsolvent;
(iii5) to the best of Borrowers' knowledge, the issuance of the Bonds is and shall be in compliance with all applicable securities law;
(6) the most recent financial statements submitted by any Borrower accurately and fairly reflect and present its financial condition and performance in all material respects.
(c) On or before the Date of Issuance, the Related Documents shall have been authorized, executed and delivered by the parties to such documents, and such documents shall be in full force and effect.
(d) The Borrower and its Subsidiaries Agent shall have received originals (or copies certified to be true copies by an appropriate representative of the Borrowers or, in the case of the Issuer, by the Secretary or an Assistant Secretary of the Issuer) of all approvals, consents governmental and waivers, regulatory approvals necessary for the Borrowers with respect to this Agreement and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; andhereby.
(ive) There The Agent shall not have occurred received a letter satisfactory to the Agent addressed to the Agent from counsel to the Issuer (which counsel shall be satisfactory to the Agent) allowing the Agent to rely on such counsel's favorable written opinions described in Subsections (a)(6) and (a)(7) of this Section 3.01.
(f) The Agent shall have received a letter satisfactory to the Agent addressed to the Agent from the Trustee's counsel, if any (which counsel shall be satisfactory to the Agent), allowing the Agent to rely on such counsel's favorable written opinion.
(g) The Agent shall have received such other and further documents or exist any other material disruption of financial or capital markets that could information as the Agent may reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documentsrequest.
Appears in 1 contract
Sources: Credit Agreement (Bacou Usa Inc)
Initial Conditions Precedent. The obligation of the Lenders each Issuing Bank to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a issue any Letter of Credit, is Credit and the obligation of each Bank to make Advances pursuant to the terms and conditions of this Agreement are subject to the following conditions precedent:
(a) The condition precedent that the Administrative Agent shall have received each on or before the day of the initial Advance (or, if earlier, the day of issuance of the initial Letter of Credit) the following, each dated on or before such day, in form and substance satisfactory to the Agent:Administrative Agent (the day when all such conditions have been satisfied or waived is herein referred to as the "Effective Date"):
(i) Counterparts of this This Agreement executed by each of Borrower, each Bank, each Issuing Bank, and the parties hereto;
Administrative Agent, (ii) the Notes (if any) payable to the order of the Banks, respectively, executed by the Borrowerrespective Borrowers, payable to each Lender and (if requested iii) the Guaranty executed by such Lender) the Parent, Global, and complying with the applicable provisions of Section 2.9;EII.
(iiib) An opinion of R▇▇▇▇▇ ▇. ▇▇▇▇▇, in-house counsel to for the Borrower, addressed to the Agent and the LendersLoan Parties, in form and substance acceptable reasonably satisfactory to the Administrative Agent’s counsel;.
(ivc) A copyAn opinion of Gardere W▇▇▇▇ ▇▇▇▇▇▇ LLP, certified as of a recent date by counsel for the appropriate officer of Loan Parties, in form and substance reasonably satisfactory to the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;Administrative Agent.
(vd) A certificate An opinion of good standing or certificate of similar meaning with respect M▇▇▇▇▇ and Calder, Cayman Islands counsel for the Loan Parties, in form and substance reasonably satisfactory to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;Administrative Agent.
(vie) A certificate An opinion of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver B▇▇▇▇ & M▇▇▇▇▇▇▇, U.K. counsel for the Loan Documents Parties, in form and substance reasonably satisfactory to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;Administrative Agent.
(viif) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) Certified copies of the Borrower of (i) the by-laws of such Personall governmental approvals, if a corporationany, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person for each Borrower to authorize the execution, delivery and performance of enter into the Loan Documents to which it is a party;party and perform its obligations thereunder.
(viiig) The Fees then due A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying (i) the resolutions of the Board of Directors of such Loan Party approving this Agreement, the other Loan Documents, and payable under the transactions contemplated hereby, in each case evidencing any necessary company action, (ii) the name and true signature of an agent or agents of such Loan Party authorized to sign each Loan Document to which such Loan Party is a party and the other documents to be delivered hereunder, and (iii) attached true and correct copies of the Bylaws and Articles of Incorporation (or corresponding organizational documents) of such Loan Party.
(h) A certificate of the chief executive officer or the chief financial officer of the Parent certifying that (i) insurance complying with Section 3.6(c5.01(d) is in full force and effect, (ii) no Material Adverse Change has occurred since December 31, 2009, (iii) no Default or Event of Default exists, (iv) all representations and warranties made by the Borrowers in Section 4.01 are correct in all material respects on and as of the date of the initial Advances (other than those representations and warranties that expressly relate solely to a specific earlier date, which shall be correct in all material respects as of such earlier date), and any other Fees payable (v) the annual audited financials for the fiscal year ended December 31, 2009 and the quarterly unaudited financials for the fiscal quarter ended March 31, 2010, in each case delivered to the Agent, the Titled Agents and the Lenders on or Administrative Agent prior to the Effective Date;, are true and correct copies of such financials, fairly present the financial condition of the Parent as of such dates, and were, to the best of such officer's knowledge, prepared in conformity with GAAP.
(ixi) A Compliance CertificateCertificates of existence, dated good standing and qualification from appropriate state officials with respect to EII, such corresponding certificates or other documents from Cayman Islands officials or agencies as the Administrative Agent reasonably requests with respect to EOIC and Global, and such corresponding certificates or other documents from English officials or agencies as the Administrative Agent reasonably requests with respect to the Parent and EUL.
(j) Evidence of payment by the Borrowers of all fees and disbursements required to be paid by the Borrowers on the Effective Date, based on financial results as including the fees and expenses of June 30, 2021 and after giving pro forma effect counsel to the financing contemplated by this Agreement Administrative Agent, the Syndication Agents, the Co-Documentation Agents and the use Joint Lead Arrangers.
(k) Evidence of appointment by each of the proceeds Parent, EUL, Global, and EOIC of the Loans to be funded on the Effective Date;CT Corporation System as its domestic process agent in accordance with Section 8.14.
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiil) Such other documents, governmental certificates, conditions, agreements and instruments lien searches as the Administrative Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Ensco PLC)
Initial Conditions Precedent. The obligation of the Lenders Lender Parties to effect any Borrowing or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a to issue any Letter of Credit, Credit is subject to the following conditions precedent:
(a) The condition precedent that the Administrative Agent shall have received each on or before the day of the first Borrowing or Letter of Credit all of the following, each dated (unless otherwise indicated) as of the date hereof, in form and substance satisfactory to each Lender:
(a) The Notes, properly executed on behalf of the AgentBorrower.
(b) The Guaranty, duly executed by each Subsidiary Obligor.
(c) The Security Agreement, properly executed on behalf of each Obligor, together (subject to Section 3.3) with:
(i) Counterparts of this Agreement executed by Financing statements with respect to each Obligor to be filed in each jurisdiction which, in the opinion of the parties hereto;Administrative Agent, is reasonably necessary to perfect the Liens created by the Security Agreement, to the extent such Liens can be perfected by filing.
(ii) Notes executed by Current searches of appropriate filing offices in each jurisdiction in which any Obligor is organized, has an office or otherwise conducts business showing that no state or federal tax liens have been filed and remain in effect against the BorrowerBorrower or any Subsidiary, payable and that no financing statements or other notifications or filings have been filed and remain in effect against the Borrower or any Subsidiary except (A) to each Lender perfect Liens not prohibited under Section 6.1, and (if requested by such LenderB) and complying with the applicable provisions of Section 2.9;as set forth in Schedule 4.11.
(iii) An opinion Original stock certificates (or other applicable evidence of counsel to ownership) evidencing all issued and outstanding Capital Stock of each Subsidiary Obligor and not less than 65% of the BorrowerCapital Stock of each Applicable Foreign Subsidiary, addressed to together with stock powers executed in blank by the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;applicable owner of such Capital Stock.
(iv) A copy, certified as Evidence of a recent date all insurance required by the appropriate terms of the Security Agreement, including but not limited to certificates and loss payable endorsements showing the Administrative Agent, for the benefit of the Lender Parties, as additional insured and lender’s loss payee thereunder.
(d) Financial statements of the Borrower for the 12-month period ending March 31, 2008, together with a Compliance Certificate with respect to such financial statements, duly executed by the chief financial officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;.
(ve) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) secretary of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of Obligor (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize certifying that the execution, delivery and performance of the Loan Documents and other documents contemplated hereunder to which it such Obligor is a party;party have been duly approved by all necessary action of the Governing Board of such Obligor, and attaching true and correct copies of the applicable resolutions granting such approval, (ii) certifying that attached to such certificate are true and correct copies of the Organizational Documents of such Obligor, together with such copies, and (iii) certifying the names of the officers of such Obligor that are authorized to sign the Loan Documents and other documents contemplated hereunder, including (in the case of the Borrower) requests for Borrowings and Letters of Credit, together with the true signatures of such officers. The Lender Parties may conclusively rely on such certificate until they shall receive a further certificate of the Secretary or Assistant Secretary of such Obligor canceling or amending the prior certificate and submitting the signatures of the officers named in such further certificate.
(viiif) The Fees then due Certificates of good standing of each Obligor, dated not more than ten days before such date.
(g) A signed copy of an opinion of counsel for the Borrower, addressed to the Lender Parties as to matters referred to in Sections 4.1, 4.2, 4.3 and payable under Section 3.6(c)4.7, and any as to such other Fees payable matters as the Lender Parties may reasonably request, with that opinion being acceptable to each Lender’s counsel. In the case of Section 4.7, the opinion may be to the Agentknowledge of such counsel and may be made without regard to products liability and intellectual property litigation, and, in the Titled Agents case of Section 4.3, insofar as it relates to enforcement of remedies, it may be subject to applicable bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally from time to time, and the Lenders on or prior to the Effective Date;usual equity principles.
(ixh) A Compliance Certificate, dated All fees required to be paid as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by date hereof under this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan DocumentsFee Letter.
Appears in 1 contract
Sources: Credit Agreement (Arctic Cat Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to the order of each Lender (or Designated Lender, if requested by such Lenderapplicable) and complying with the applicable provisions of Section 2.92.11., and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyAn opinion of King & Spalding LLP, counsel to the Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, substantially in the form of Exhibit M;
(v) The certificate of partnership of the Borrower certified as of a recent date by the appropriate officer Secretary of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationGeorgia;
(vvi) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of Georgia;
(vii) A certificate of incumbency signed by the Secretary or Assistant Secretary of GP Sub with respect to each of the officers of GP Sub authorized to execute and deliver on behalf of the Borrower the Loan Documents to which the Borrower is a party and the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viii) Copies, certified by the Secretary or Assistant Secretary of GP Sub, of (i) the partnership agreement of the Borrower and (ii) all corporate (or comparable) action taken by GP Sub to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(ix) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the state of formation of the Borrower and a such Guarantor;
(x) A certificate of qualification good standing or certificate of similar meaning with respect to transact business or other comparable certificates each Guarantor issued as of a recent date by each the Secretary of State (and any of the state department of taxation, as applicable) formation of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectsuch Guarantor;
(vixi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor with respect to each of the officers of the Borrower such Guarantor authorized to execute and deliver the Loan Documents to which the Borrower such Guarantor is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viixii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of the Borrower of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxiv) A Compliance Certificate, dated Certificate calculated as of the Effective DateDecember 31, based on financial results as of June 30, 2021 and after 2005 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date) and a Compliance Certificate calculated as of March 31, 2006 (which may be in draft form and indicate that the financial information provided with such certificate is subject to change) (giving pro forma effect to the financing contemplated by this Agreement and the use of proceeds of the Loans to be funded on the Effective Date);
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiixv) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred (i) subsequent to December 31, 2005, any material adverse change in the business, properties, financial condition or become known to the Agent or any operations of the Lenders Borrower and its Subsidiaries taken as a whole, or (ii) any eventchanges in the business, properties, financial condition, situation or status since the date operations of the information contained in Borrower and its Subsidiaries that would cause the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered included in the Confidential Information Memorandum dated March 2006, distributed to the Agent Lenders to be materially inaccurate, taken as a whole, as of the Closing Date (it being understood that actual results may vary from such projections, forecasts, and the Lenders prior similar forward-looking information, and do not and are not intended to the Agreement Date provide any guarantee or assurance that has had or could reasonably actual results will be expected to result in a Material Adverse Effectconsistent therewith);
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of any Issuing Bank to issue the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a initial Letter of Credit, Credit and the obligation of each Lender to make its initial Advance pursuant to the terms and conditions of this Agreement is subject to the following conditions precedent:
(a) The condition precedent that the Administrative Agent shall have received each on or before the day of the initial Advance (or, if earlier, the day of issuance of the initial Letter of Credit) the following, each dated on or before such day, in form and substance reasonably satisfactory to the Agent:Administrative Agent (the first day when all such conditions have been satisfied or waived is hereinafter referred to as the “Effective Date”):
(ia) Counterparts of Duly executed signature pages to this Agreement executed (including by each facsimile or other electronic means) in a sufficient number of the parties hereto;
(ii) Notes executed signed counterparts as requested by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Administrative Agent and the Lenders, in form and substance acceptable any Notes requested pursuant to Agent’s counsel;
(ivSection 2.02(e) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment A certificate of the Agent Secretary or an Assistant Secretary of the Borrower certifying (i) the resolutions of the board of directors of the Borrower authorizing the execution of each Credit Document, (ii) the charter and bylaws of the Borrower and (iii) all other documents evidencing any necessary company action and governmental, shareholder and third-party consents, approvals and filings, if any, with respect to each such Credit Document and the Lenders:transactions thereunder.
(c) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers (or agents) authorized to sign each Credit Document to be executed by it.
(d) An opinion of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Borrower, and if applicable, Guarantors, substantially in the form of Exhibit D.
(e) An opinion of the general counsel of the Borrower, and if applicable, Guarantors, substantially in the form of Exhibit E.
(f) Certificates of existence, good standing and qualification from appropriate state officials with respect to the Borrower.
(g) A certificate of an officer of the Borrower (i) certifying that the representations and warranties contained in each Credit Document are correct, (ii) certifying as to the satisfaction of all conditions set forth in this Section 3.01, (iii) describing in reasonable detail the insurance maintained by the Borrower and the Subsidiaries on the date hereof as required by Section 5.01(c) and (iv) certifying that such insurance complies with Section 5.01(c) and is in full force and effect.
(h) Evidence of payment by the Borrower of all fees and disbursements required to be paid by the Borrower on the date hereof.
(i) There shall not have occurred Evidence of the termination of the Existing Credit Facility and the commitments thereunder, payment in full of all amounts owed thereunder and termination of all Liens arising thereunder or become known in connection therewith (which termination and repayment may be contemporaneous with the satisfaction of the conditions under this Section 3.01 and the application of the proceeds of any Advances and the issuance of any Letters of Credit that occur on the Effective Date).
(j) All documentation and other information that the Borrower is required by bank regulatory authorities to deliver to the Issuing Banks, the Lenders and the Administrative Agent or any under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the Patriot Act, that has been identified by the Issuing Banks, the Lenders any event, condition, situation or status since and the date of the information contained in the financial Administrative Agent and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered notified to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan DocumentsBorrower.
Appears in 1 contract
Sources: Revolving Credit Agreement (Pride International Inc)
Initial Conditions Precedent. The obligation obligations of the Lenders to effect or permit make the occurrence Loans comprising the initial Borrowing and of Agent to issue the first Credit Event hereunder, whether as the making of a Loan or the issuance of a initial Letter of Credit, is Credit are subject to the following conditions precedentthat:
(a) The Receipt by Agent shall have received each of the followingfinal executed Merger Agreement, in form together with a copy of the Decision and substance satisfactory Order published for public comment by the Federal Trade Commission, In the Matter of Par Petroleum Corporation, a corporation (“Decision and Order”), and a copy of the fully executed Articles of Merger between Bogey and Koko`oha (“Articles of Merger”), together with evidence that such Articles of Merger have been submitted for filing with the Hawaii Department of Commerce and Consumer Affairs.
(b) Satisfactory review and acceptance of all environmental due diligence on all assets owned or to the Agent:
be owned by Borrower, including all real property owned or leased by a Borrower or for which Borrower has rights to occupy pursuant to a license or permit, which environmental due diligence shall include without limitation (i) Counterparts a review of this Agreement executed any environmental indemnities provided to Borrower, (ii) review of all insurance coverage of Borrower and its Subsidiaries related to environmental risk, (iii) review of Borrower’s corporate environmental policy, procedures and response protocols pertaining to the operational business risk, identifying current company standards and customary commercial practices within the industry to be performed by each a qualified environmental consultant, (iv) delivery and subsequent review of environmental reports and/or investigations of all of the parties heretoassets of Borrower, including the Assets, completed by a qualified environmental consultant acceptable to Agent, which reports and/or investigations may be reviewed by Agent’s environmental consultants, and (v) probable maximum loss determinations based on environmental assessments acceptable to Agent;
(iic) Notes executed Receipt by Agent of income statement projections for Koko`oha for five (5) years from the BorrowerClosing Date supported by historical EBITDA, payable to each Lender (if requested by such Lender) revenue, cost of sales, and complying with the applicable provisions operating expenses of Section 2.9;
(iii) An opinion of counsel to the BorrowerKoko`oha, addressed to the Agent and the Lenders, all in form and substance acceptable to Agent’s counsel;
(ivd) A copy, certified as of a recent date Receipt and satisfactory review by the appropriate officer Agent of the State unaudited pre-Merger Closing consolidated balance sheet of Koko`oha and its Subsidiaries and an unaudited, pro-forma post-Merger Closing balance sheet of Koko`oha and its Subsidiaries reflecting such financial information as the Agent may request all in which form and substance acceptable to the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationAgent;
(ve) A certificate Receipt of good standing evidence satisfactory to Agent of a minimum of $57,000,000.00 of shareholders’ equity in Bogey;
(f) Receipt and satisfactory review by Agent of all fuel purchase agreements between Borrower or certificate its Subsidiaries and HIE and any other fuel suppliers;
(g) Delivery to, and satisfactory review by, Agent and its counsel of similar meaning with respect due diligence information from Borrower regarding litigation, tax, accounting, labor, insurance, pension liabilities (actual or contingent), real estate leases, material contracts, debt agreements, property ownership, environmental matters, including but not limited to environmental indemnities to Lenders from Borrower, contingent liabilities and management of Borrower and its Subsidiaries;
(h) Delivery to, and satisfactory review by, Agent of all insurance policies meeting the requirements specified by this Agreement issued to Par Petroleum, and identifying Borrower and its Subsidiaries as named insured, by insurance companies reasonably acceptable to Agent and evidence such policies remain in full force and effect;
(i) Borrower shall have delivered to Agent, at Borrower’s sole expense, an opinion of legal counsel in form and content satisfactory to Agent to the effect that (i) Borrower issued as of a recent date by the Secretary of State and its Subsidiaries are duly authorized to execute, deliver and perform each of the state of formation Credit Documents, (ii) each of the Credit Documents are legal, valid and binding instruments enforceable against the makers thereof in accordance with their respective terms, and (iii) such other matters incident to the transactions contemplated hereby, as Agent may reasonably request;
(j) Borrower shall have delivered to Agent, on or prior to the Closing Date, each item listed in Schedule 3.01, each in form and a certificate of qualification substance reasonably satisfactory to transact business Agent and Lenders and with sufficient copies for Agent and each Lender;
(k) No event or condition (including without limitation any pending or threatened litigation, investigation or other comparable certificates issued by each Secretary proceeding; a change in the financial condition of State (and Borrower or any state department of taxationGuarantor; or a default under any financing agreement, as applicablepermit, material contract or insurance policy) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected likely to have a Material Adverse Effect;
(vi) A certificate Effect shall have occurred since June 2, 2014 and be continuing on the date of incumbency signed by the Secretary such initial Borrowing or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters Letter of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiil) Such other documentsThe absence of any material disruption of, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained a material adverse change in conditions in the financial and business projectionsfinancial, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial banking or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documentsin Agent’s reasonable discretion.
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 counterparts of this Agreement executed by each of the parties hereto;
(iib) Notes executed by the Borrower, payable to each applicable Lender (if requested by such Lender) and complying with the applicable provisions terms of Section 2.92.6, but excluding any Lender that has requested that it not receive Notes;
(iiic) An opinion the Guaranty executed by each of the Guarantors initially to be a party thereto;
(d) an opinion(s) of counsel to the BorrowerBorrower and such other Loan Parties organized in Delaware as the Administrative Agent may request, addressed to the Administrative Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(ive) A copythe certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative state of the Borrower, to be true and complete, formation of the corporate charter or other formation document of the Borrower as in effect on such date of certificationLoan Party;
(vf) A a certificate of good standing (or certificate of similar meaning meaning) with respect to the Borrower each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party within thirty (30) days of the Borrower date hereof, and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vig) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party with respect to each of the officers of the Borrower such Person authorized to execute and deliver the Loan Documents to which the Borrower such Person is a party, and each in the case of the officers Borrower, authorized to execute and deliver on behalf of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request Loan Interest Rate Request Forms in the issuance of Letters of Creditforms attached hereto as Exhibit C;
(viih) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party of (iA) the by-laws of such PersonLoan Party, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (iiB) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiii) The Fees then due a Compliance Certificate and payable under Section 3.6(c)an Unencumbered Asset Value Certificate for the Borrower’s fiscal quarter ending September 30, 2015;
(j) UCC, tax, judgment and any other Fees payable lien search reports with respect to the Agent, Borrower in all necessary or appropriate jurisdictions indicating that there are no liens of record other than Permitted Liens;
(k) fully executed and completed Borrower Authorization Forms effective as of the Titled Agents and the Lenders on or prior to the Effective Agreement Date;
(ixl) A Compliance Certificate, dated as a complete listing of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Dateall Subsidiaries which are Non-Guarantor Subsidiaries;
(xm) A letter from the agents under the Existing Agreement providing information regarding the payment in full of all fees, expenses and reimbursement amounts outstanding thereunder due and providing for the termination thereof;
(xi) Such due diligence with respect payable to the Unencumbered Pool as Administrative Agent and any of the Agent may reasonably requireLenders, including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and
(xiin) Such such other documents, agreements agreements, and instruments as the Agent on behalf of Administrative Agent, or any Lender through the Lenders Administrative Agent, may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Loan Agreement (Equity One, Inc.)
Initial Conditions Precedent. The obligation obligations of the Lenders Banks to effect or permit make the occurrence of Term Loans and the first Revolving Credit Event hereunder, whether as Loans constituting the making of a Loan or the issuance of a Letter of Credit, is initial Borrowing are subject to the following conditions precedentprecedent that:
(a) The the Administrative Agent shall have received on or before the date of such Loans each of the following, in form and substance reasonably satisfactory to the AgentAdministrative Agent and its counsel:
(i) Counterparts of this Agreement the Notes duly executed by each of the parties heretoBorrower;
(ii) Notes executed by the Borrowerreturn, payable from the respective beneficiaries thereof, of all letters of credit, if any, issued under the Prior Credit Agreement that are to each Lender be returned to the Issuing Bank (if requested by such Lenderas defined in the Prior Credit Agreement) and complying with on or before the applicable provisions date of Section 2.9the initial Borrowing;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect and of each Material Subsidiary, dated the Effective Date, attesting to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary corporate action taken by such Person to authorize Person, including resolutions of its respective Board of Directors authorizing, as applicable, the execution, delivery and performance of the Facility Documents and each other document to be delivered pursuant to this Agreement, with certified copies of the certificate or articles of incorporation and the by-laws of the Borrower and each Material Subsidiary; and, such certificate shall state that the resolutions and corporate documents thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate;
(iv) a certificate of the Secretary or Assistant Secretary of the Borrower and of each Material Subsidiary, dated the Effective Date, certifying the names and true signatures of the officers of such entity authorized to sign the Facility Documents and the other documents to be delivered by such entity under this Agreement;
(v) a certificate of a duly authorized officer of the Borrower and each Material Subsidiary dated the Effective Date, stating that (i) the representations and warranties in Article 7 hereof are true and correct on such date as though made on and as of such date, (ii) no Default or Event of Default (as such terms are defined in the Prior Credit Agreement) has occurred or is continuing under the Prior Credit Agreement and (iii) no Default or Event of Default (as defined herein) has occurred or is continuing or would occur as a result of the making of any Loan Documents to which it or the issuance of any Letter of Credit;
(vi) favorable opinions of counsel for the Borrower and each Material Subsidiary, dated the Effective Date, in substantially the form of Exhibit E;
(vii) evidence that the Borrower and each Material Subsidiary is a partyduly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation;
(viii) The Fees then due an audited consolidated balance sheet of the Borrower and payable under Section 3.6(c)its Consolidated Subsidiaries as at August 28, 1999, and any other Fees payable to a consolidated income statement and statement of cash flows of the AgentBorrower and its Consolidated Subsidiaries for the fiscal year then ended, the Titled Agents and the Lenders on or prior to the Effective Dateall prepared in accordance with GAAP;
(ix) A Compliance Certificatea Subsidiary Guarantee duly executed by each Material Subsidiary;
(x) a true copy of each partnership/joint venture agreement with respect to each Joint Venture Company in which the Borrower or one of its Subsidiaries or Affiliates has, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;an Investment; and
(xi) Such due diligence with respect to the Unencumbered Pool such other documents, financial statements, instruments, approvals, opinions and evidence as the Administrative Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment Borrower shall have paid or caused to be paid all fees required to be paid hereunder or in connection herewith, including without limitation all the fees set forth in Sections 4.3 and 4.4(b) hereof, and all accrued fees and expenses of the Agent Administrative Agent, the Syndication Agent, the Arrangers, the Issuing Bank and each of the Banks (subject to the limitations set forth herein) in connection with the - 45 - preparation, execution and delivery of this Agreement and the Lenders:other Facility Documents and the consummation of the transactions contemplated hereby and thereby;
(ic) There all Loans made under the Prior Credit Agreement and all other Prior Credits and other amounts due and payable under the Prior Credit Agreement as of the Effective Date and the amount of accrued but unpaid facility fees pursuant to Section 3.04 of the Prior Credit Agreement shall not be paid in full from the proceeds of the first Loans extended under this Agreement and the Borrower shall have occurred or become known terminated the Prior Credit Agreement in writing;
(d) all extensions of credit made by Fleet and/or Chase in connection with lines of credit held available by such banks for the benefit of the Borrower and all other amounts due and payable thereunder that are outstanding as of the Effective Date shall be paid in full from the proceeds of the first Loans extended under this Agreement and the Borrower shall have terminated each of such lines of credit in writing;
(e) the Borrower and each of the Material Subsidiaries shall have obtained all consents, permits and approvals required in connection with the execution, delivery and performance by the Borrower and such Material Subsidiaries of their obligations hereunder and such consents, permits and approvals shall continue in full force and effect;
(f) all legal matters in connection with this financing shall be reasonably satisfactory to the Agent or any of Issuing Bank, the Lenders any event, condition, situation or status since the date of the information contained Banks and their respective counsel;
(g) no material adverse change in the business, condition (financial and business projectionsor otherwise), budgetsoperations, pro forma data and forecasts concerning performance or properties of the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in Subsidiaries, taken as a Material Adverse Effectwhole, shall have occurred since August 28, 1999;
(iih) No litigation, there shall exist no action, suit, investigation investigation, litigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which in any court or before any arbitrator or governmental instrumentality that could reasonably be expected to (1i) result in have a Material Adverse Effect material adverse effect on the business, condition (except financial or otherwise), operations, performance, properties or prospects of the Borrower and its Subsidiaries, taken as set forth in Schedule 6.1(i))a whole, or (2ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which impair the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely Material Subsidiary's ability to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations perform satisfactorily under the Loan Facility Documents to which it is a party; and
(ivi) There the Administrative Agent, the Issuing Bank and the Banks shall not have received reasonably satisfactory evidence that (i) neither the Borrower nor any of its Subsidiaries is in default with respect to any contractual obligations to which it is a party, the effect of which may be material and adverse to the Borrower and the Subsidiaries of the Borrower, taken as a whole, or to the ability of the Borrower or any such Subsidiary to perform its respective obligations hereunder or under the other Facility Documents, (ii) no Default or Event of Default (as such terms are defined in the Prior Credit Agreement) has occurred or exist is continuing under the Prior Credit Agreement and (iii) no Default or Event of Default (as defined herein) has occurred or is continuing or would occur as a result of the making of any other material disruption Loan or the issuance of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documentsany Letter of Credit.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, Borrower payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.12, and the Swingline Note executed by the Borrower payable to the Agent (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyfavorable opinion of counsel to the Obligors, certified addressed to the Agent, the Lenders and the Swingline Lender, addressing such matters as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationAgent may reasonably require;
(v) A certificate The Governing Documents of good standing the Borrower, each Guarantor and each general partner, managing member (or certificate Person performing similar functions) of similar meaning with respect to the Borrower issued such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vi) A good standing certificate with respect to the Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Unencumbered Assets owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation Continuation, Notices of Conversion and Notices of Conversion Swingline Borrowings and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiiix) Evidence that the principal of and interest on, and all other amounts owing in respect of the First Amended and Restated $430 Million Interim Revolving Credit Agreement, dated as of July 1, 2004, among the Borrower, certain Guarantors party thereto, the lenders named therein, as Lenders, Bank of America, N.A., as Administrative Agent, and Banc of America Securities LLC, as Sole Lead Arranger and Sole Book Manager, shall have been paid in full, that any commitments to extend credit thereunder shall have been canceled or terminated and that all guaranties in respect of, and Liens securing, such Indebtedness shall have been released (or arrangements for such release satisfactory to the Agent shall have been made);
(x) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixxi) A Compliance CertificateCertificate calculated as of March 31, dated 2005;
(xii) Copies of the Unencumbered Asset Qualification Documents for each of the Properties included as an Unencumbered Asset as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiixiii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Borrower, the other Obligors, and its their respective Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(iii) The Borrower Borrower, the other Obligors and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Wells Real Estate Investment Trust Ii Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, Borrower payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.10, and the Swingline Note executed by the Borrower payable to the Agent (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copy, certified The Security Documents relating to the Collateral Pool Properties existing as of a recent date by the appropriate officer of Effective Date, together with the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on Eligible Real Estate Qualification Documents for such date of certificationCollateral Pool Properties;
(v) A certificate favorable opinion of good standing counsel to the Obligors, addressed to the Agent, the Lenders and the Swingline Lender, addressing such matters as Agent may reasonably require (provided that such opinion shall not address compliance with zoning or certificate “best available remedies” under applicable state law or the enforceability of similar meaning any provisions of the Guaranty which reference California law (except with respect to the Borrower issued Collateral Properties located in California));
(vi) The Governing Documents of Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vii) A good standing certificate with respect to Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Collateral Pool Properties owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(viviii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Continuation, Notices of Conversion Conversion, Notices of Swingline Borrowings and to request the issuance of Letters of Credit;
(viiix) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiix) A copy of each document or agreement evidencing any of the Indebtedness described in Schedule 6.1(g) as Agent may request, in each case certified as true, correct and complete by the chief operating officer or chief financial officer of the Borrower;
(xi) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixxii) A pro forma Compliance Certificate, dated Certificate calculated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(xxiii) A letter from Evidence of the agents under closing of the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereofMezzanine Loan;
(xixiv) Such due diligence with respect to An original executed counterpart of the Unencumbered Pool as the Agent may reasonably requireIntercreditor Agreement; and
(xiixv) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Borrower, the other Obligors, their respective Subsidiaries and its Subsidiaries the Collateral Pool Properties delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(iii) The Borrower Borrower, the other Obligors and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and;
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents; and
(v) The Formation Transactions and the IPO shall have been consummated, the Parent shall have received gross cash proceeds from the IPO in an amount not less than $4,500,000.00, and the Agent and the Lenders shall be satisfied with the debt, ownership, management and capitalization transactions relating to Borrower and Parent.
Appears in 1 contract
Initial Conditions Precedent. The obligation of each Bank to make Advances and the Lenders to effect or permit the occurrence obligation of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter L/C Issuers to issue Letters of Credit, pursuant to the terms and conditions of this Agreement, is subject to the following conditions precedent:
(a) The precedent that the Administrative Agent shall have received each of the following, each dated on or before the date hereof, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes : This Agreement, executed by the BorrowerBorrower and each Bank, and the executed Notes payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer order of the State in which the Borrower is organizedBanks, and a duly authorized officer or similar representative respectively. Certified copies of the Borrower, to be true and complete, resolutions of the corporate charter or other formation document Board of Directors of the Borrower as in effect on such date approving this Agreement, each Note, each Letter of certification;
(v) A certificate Credit Application, each Letter of good standing or certificate Credit and each Notice of similar meaning with respect to the Borrower issued as Borrowing, and of a recent date by the Secretary of State of the state of formation of the Borrower all documents evidencing other necessary corporate action and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxationgovernmental approvals, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower if any, with respect to each such Loan Document and certified copies of the restated certificate of incorporation and bylaws of the Borrower. A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to execute and deliver the sign each Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents Document to which it is a party;
(viii) The Fees then due party and payable under Section 3.6(c)the other documents to be delivered hereunder. A favorable opinion of Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., counsel for the Borrower, to be delivered to, and any other Fees payable to for the benefit of, the Banks and the Administrative Agent, at the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as express instruction of the Effective DateBorrower, based on financial results substantially in the form of Exhibit C and as of June 30, 2021 and after giving pro forma effect to such other matters as any Bank through the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Administrative Agent may reasonably require; and
(xii) Such other documentsrequest. A favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, agreements ▇▇., Senior Vice President and instruments as the Agent on behalf General Counsel of the Lenders Borrower, to be delivered to, and for the benefit of, the Banks and the Administrative Agent, at the express instruction of the Borrower, in substantially the form of Exhibit D and as to such other matters as any Bank through the Administrative Agent may reasonably request.
(b) In . A letter addressed to the good faith judgment of the Administrative Agent and the Lenders:
Banks from the Borrower stating to the effect that (i) There shall not have occurred notice has been given to terminate all obligations to lend under the Prior Credit Facility and (ii) neither principal or become known to interest nor letters of credit are outstanding under the Agent or any Prior Credit Facility. A certificate of a Responsible Officer of the Lenders any eventBorrower certifying (i) there has not occurred a material adverse change since December 31, condition, situation or status since the date of the information contained 2004 in the consolidated financial and business projections, budgets, pro forma data and forecasts concerning condition of the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in taken as a Material Adverse Effect;
whole, (ii) No litigationthere has not occurred a material adverse change since March 31, action2005 in the business, suitassets, investigation liabilities (actual or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)contingent), operations, condition (other than financial) or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability prospects of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waiverstaken as a whole, and shall have made or given all necessary filings and notices(iii) compliance with the financial covenant set forth in Section 5.2(c)as of March 31, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents2005.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders Lender shall not be obligated to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a fund any Loan or make any other extension of credit hereunder unless, on or before the issuance date hereof, each of a Letter of Credit, is subject to the following conditions precedenthas been satisfied, in the sole opinion of Lender:
(a) The Agent Borrower and each other Person that is to be a party to any Loan Document shall have received executed and delivered each of the followingsuch Loan Document, all in form and substance satisfactory to Lender.
(b) Borrower shall cause to be delivered to Lender the Agentfollowing documents, each in form and substance satisfactory to Lender:
(i) Counterparts of this Agreement executed by each A copy of the parties heretoOrganic Documents of Borrower and each Subsidiary;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) An incumbency certificate and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer resolutions of the State in which the Borrower is organized, and a duly authorized officer or similar representative board of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary directors (or other individual performing similar functionsappropriate governing body) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each Subsidiary executing any Loan Documents, signed by a Senior Officer of the officers of the Borrower authorized to deliver Notices of Borrowingor such Subsidiary, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize authorizing the execution, delivery and performance of the Loan Documents Documents;
(iii) A favorable legal opinion of each Obligor’s outside legal counsel addressed to which it is a partyLender regarding such matters as Lender and its counsel may request;
(iv) A satisfactory Borrowing Base Certificate duly completed by Borrower, together with all supporting statements, schedules and reconciliations as required by Lender;
(v) Evidence of insurance, satisfactory to Lender and otherwise meeting the requirements of the Loan Documents;
(vi) Duly executed Lien Waiver/Access Agreements as required by this Agreement or any of the other Loan Documents;
(vii) Borrower’s financial statements for its most recently concluded Fiscal Year and its most recently concluded fiscal month and such other financial reports and information concerning Borrower as Lender may reasonably request; and
(viii) The Fees then due and payable under Section 3.6(c)All additional opinions, and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements certificates and instruments as the Agent on behalf of the Lenders other assurances that Lender or its counsel may reasonably request.
(bc) In the good faith judgment Lender shall have received, by virtue of UCC searches and/or other Lien searches, evidence satisfactory to it that there are no existing Liens with respect to any of the Agent and the Lenders:Collateral other than Permitted Liens.
(id) There Lender shall not have occurred or become known received a final payoff letter from any Person whose outstanding Debt is to be satisfied by remittance of proceeds from the Agent Loans hereunder, and, if applicable, a disbursement letter shall be required to direct the payment of Loan proceeds to such Person.
(e) Lender shall have received, in form and content satisfactory to it, all appraisals of any of the Collateral that may be required by Lender and all field exams with respect to Borrower or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably Collateral as may be expected to result in a Material Adverse Effect;required by Lender.
(iif) No litigationLender shall have received assurances, actionsatisfactory to it, suit, investigation or other arbitral, administrative or judicial proceeding shall be that no litigation is pending or threatened against any Obligor which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) Lender determines may have a Material Adverse Effect, or .
(Bg) restrain or enjoin, impose materially burdensome [Intentionally Omitted].
(h) Borrower shall have satisfied such additional conditions on, or otherwise materially and adversely affect the ability precedent as are set forth in Item 15 of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan DocumentsTerms Schedule.
Appears in 1 contract
Sources: Loan and Security Agreement (Broadwind Energy, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the following conditions precedent:
(a) The Managing Agent shall have received each of the following, in form and substance satisfactory to the AgentLenders:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the each Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions terms of Section 2.92.8(a);
(iii) An opinion of Suth▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇ren▇▇▇ ▇▇▇, counsel to the Borrower, addressed to the Managing Agent and the Lenders, in substantially the form and substance acceptable to Agent’s counselof Exhibit G;
(iv) A copy, The Articles of Incorporation of each Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the BorrowerMaryland, to be true and complete, of the corporate charter or other formation document of extent not provided to the Borrower as in effect on such date of certificationExisting Lenders;
(v) A certificate of good standing or certificate of similar meaning with respect to the each Borrower issued as of a recent date by the Secretary of State of the state State of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse EffectMaryland;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the each Borrower with respect to each of the officers of the such Borrower authorized to execute and deliver the Loan Documents to which the such Borrower is a party, party and each of the officers of the such Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditConversion;
(vii) Copies (certified by the Secretary or Assistant Secretary (or other individual performing similar functionsof such Borrower) of the Borrower of (i) the by-laws bylaws of such PersonBorrower, if a corporationto the extent not provided to the Existing Lenders, the operating agreement and of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary corporate action taken by such Person Borrower to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable To the extent not provided to the AgentExisting Lenders, the Titled Agents articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument of each of SBIC and SSBIC certified as of a recent date by the Lenders on or prior to Secretary of State of the Effective DateState of formation of such Subsidiary;
(ix) To the extent not provided to the Existing Lenders, a certificate of good standing or certificate of similar meaning with respect to each of SBIC and SSBIC issued as of a recent date by the Secretary of State of the State of formation of each such Subsidiary;
(x) To the extent not provided to the Existing Lenders, copies certified by the Secretary or Assistant Secretary of each of SBIC and SSBIC (or other individual performing similar functions) of the by-laws of each of SBIC and SSBIC;
(xi) A copy of each of the documents, instruments and agreements evidencing any of the Indebtedness described on Schedule 6.1(g) and a copy of each Material Contract, certified as true, correct and complete by the chief financial officer of the Company;
(xii) Evidence that all insurance required to be maintained by the Company and the Subsidiaries under the terms of the Loan Documents is in effect, or a certificate of an officer of the Company to such effect;
(xiii) The Fees then due under Section 3.6;
(xiv) Subordination agreements with respect to any intercompany Indebtedness of a Borrower or a Guarantor permitted by Section 9.2(a)(4);
(xv) A pro-forma Compliance CertificateCertificate and pro-forma Borrowing Base Certificates of each Borrower, dated each calculated as of the Effective Date, based on financial results together with Borrowing Base Certificates of the Company and SBLC, each calculated as of June 30February 28, 2021 1998, and after giving pro forma effect March 31, 1998, and any other information that should have been delivered to the financing contemplated by this Agreement and the use Existing Lenders pursuant to Article 8 of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requireCredit Agreement; and
(xiixvi) Such other documents, agreements and instruments as the Managing Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Managing Agent and the Lenders:
(i) There shall not have occurred or become known to the Managing Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Company and its Subsidiaries delivered to the Managing Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the a Borrower to fulfill its obligations under the Loan Documents to which it is a partyDocuments;
(iii) The Borrower Company and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower Company or any Subsidiary is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the a Borrower to fulfill its obligations under the Loan Documents to which it is a partyDocuments; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
(c) The Company shall have provided the Lenders with the executed waivers and consents required by Section 7.15(b) of the Existing Credit Agreement.
Appears in 1 contract
Initial Conditions Precedent. The effectiveness of this Agreement and obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, Borrower payable to each Lender (if other than any Lender that has requested by such Lendernot to receive a Note) and complying with the applicable provisions of Section 2.92.10 (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An The Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) A favorable opinion of counsel to the BorrowerObligors, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified addressing such matters as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationAgent may reasonably require;
(v) A certificate The Governing Documents of good standing the Borrower, each Guarantor and each general partner, managing member (or certificate Person performing similar functions) of similar meaning with respect to the Borrower issued such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vi) A good standing certificate with respect to the Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Unencumbered Assets owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiiix) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full pro forma Compliance Certificate calculated as of amounts outstanding thereunder and providing for the termination thereofMarch 31, 2015;
(xi) Such due diligence with respect A certificate signed by a Responsible Officer of the Borrower certifying that each Property to be treated as an Unencumbered Asset on the Effective Date satisfies all of the requirements for an Unencumbered Pool as Asset set forth in the Agent may reasonably require; anddefinition thereof;
(xii) The documentation and other information requested by any Lender that is required by regulatory authorities under the applicable “know your customer” rules and regulations;
(xiii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsMarch 31, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date 2015 that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;; and
(iii) The Borrower Borrower, the other Obligors and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Columbia Property Trust, Inc.)
Initial Conditions Precedent. The obligation Closing Date shall be deemed to have occurred upon the satisfaction of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:precedent (the "Initial Conditions Precedent"):
(ai) The Agent Lender shall have received each of the followingagreements, opinions, reports, approvals, consents, certificates and other documents set forth on the closing document list attached hereto as Exhibit 17(a) (the "Closing Documents"), each of which documents shall be satisfactory in both form and substance satisfactory to the AgentLender and Lender's counsel, which such Closing Documents shall include, without limitation:
(iA) Counterparts of this Agreement executed by each the Pre-Closing Financials (which in the case of the parties heretoFiscal Year 2002 financial statements shall not be materially different from the draft internally prepared statements delivered to Lender prior to the Closing Date), which shall be delivered to Lender three (3) Business Days prior to the Closing Date;
(B) the Acquisition Documents and the Designated Contracts; and
(C) legal opinions from counsel for Borrowers opining as to such matters that may be required by Lender and its counsel, including certain matters as to the validity and enforceability of Lender's security interest, including, to the best of such counsel's knowledge, the absence of third-party claims with respect to the rights of Borrowers and Lender in the Accounts of Borrowers
(ii) Notes executed by Lender shall have completed all field examinations and audits with respect to the BorrowerBorrowers and the Collateral that Lender, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;in its sole discretion, may require.
(iii) An opinion of counsel Since March 30, 2002, no Material Adverse Change shall have occurred and no action or proceeding shall be pending, or to the knowledge of Borrowers, threatened against the Borrowers or the assets of any of them that might have a Material Adverse Effect with respect to any Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;.
(iv) A copyLender shall have received payment in full of all fees and expenses payable to it by Borrowers or any other Person in connection herewith, certified as of a recent date by the appropriate officer on or before disbursement of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;initial Loans hereunder.
(v) A certificate The assets of good standing Borrowers shall be free of all liens and encumbrances, other than Permitted Liens, and Borrowers shall have obtained any lien release documents or certificate of similar meaning instruments required by Lender with respect to any such lien on the assets of any Borrower issued as of other than a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;Permitted Lien.
(vi) A certificate Lender shall have received reports regarding the accounts payable and accounts receivable of incumbency signed by Borrowers for June 29, 2002 and reports regarding information on the Secretary or Assistant Secretary (or sales and collections of Borrowers through the date hereof, along with such other individual performing similar functions) collateral and financial information as Lender shall request, all of the Borrower with respect which shall be satisfactory to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;Lender.
(vii) Copies certified by Lender shall have determined that as of the Secretary or Assistant Secretary Closing Date, immediately after giving effect to (or other individual performing similar functionsA) the making of the initial Loans, if any, requested to be made on the date hereof, (B) the issuance of the initial Letter(s) of the Borrower of Credit, if any, requested to be made on such date, (iC) the by-laws payment of all fees due to Lender, (including the unpaid portion of the commitment fee provided for in subsection 4(c)(i) hereof) upon such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity date and (iiD) the payment or reimbursement by Borrowers of Lender for all corporateclosing costs and expenses incurred in connection with the transactions contemplated hereby, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance Borrowers shall have Undrawn Availability of the Loan Documents to which it is a party;at least $750,000.
(viii) The Fees then due Borrowers shall have executed and payable under Section 3.6(c), and any other Fees payable delivered to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such Lender all such other documents, instruments and agreements and instruments as the Agent on behalf of the Lenders may which Lender determines are reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; andhereby.
(ivix) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the The transactions contemplated by the Loan DocumentsAcquisition Documents shall have been consummated in accordance with the terms thereof and all applicable laws.
Appears in 1 contract
Sources: Loan and Security Agreement (Am Communications Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event initial disbursement of Loan proceeds hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) : The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(ia) Counterparts counterparts of this Agreement executed by each of the parties hereto;
(iib) Notes executed by the Borrower, payable to each applicable Lender (if requested by such Lender) and complying with the applicable provisions terms of Section 2.92.6, but excluding any Lender that has requested that it not receive Notes;
(iiic) An the Guaranty executed by each of the Guarantors initially to be a party thereto;
(d) an opinion of counsel to the BorrowerBorrower and such other Loan Parties organized in Delaware as the Administrative Agent may request, addressed to the Administrative Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(ive) A copythe certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative state of the Borrower, to be true and complete, formation of the corporate charter or other formation document of the Borrower as in effect on such date of certificationLoan Party;
(vf) A a certificate of good standing (or certificate of similar meaning meaning) with respect to the Borrower each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party within thirty (30) days of the Borrower date hereof, and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vig) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party with respect to each of the officers of the Borrower such Person authorized to execute and deliver the Loan Documents to which the Borrower such Person is a party, and each in the case of the officers Borrower, authorized to execute and deliver on behalf of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request Loan Interest Rate Request Forms in the issuance of Letters of Creditforms attached hereto as Exhibit C;
(viih) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party of (iA) the by-laws of such PersonLoan Party, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (iiB) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiii) The Fees then due a Compliance Certificate and payable under Section 3.6(c)an Unencumbered Asset Value Certificate calculated on an estimated basis using financial information not yet finalized for the Borrower’s fiscal quarter ending September 30, 2014;
(j) UCC, tax, judgment and lien search reports with respect to the Borrower in all necessary or appropriate jurisdictions indicating that there are no liens of record other than Permitted Liens;
(k) copies of all Specified Derivatives Contracts in existence on the Agreement Date, and any other Fees payable fully executed and completed Borrower Authorization Forms effective as of the Agreement Date;
(l) a complete listing of all Subsidiaries which are Non-Guarantor Subsidiaries;
(m) Borrower shall have paid to the Administrative Agent, for the Titled Agents benefit of Lenders, all interest and other fees due under the Lenders on or prior Original Credit Agreement, prorated to the Effective Date;
(ixn) A Compliance CertificateLenders, dated as of applicable, shall have completed whatever balancing transfers amongst themselves as are necessary in order to result in each Lender having the Effective Date, based outstanding balances referenced on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective DateSchedule 1.4 attached hereto;
(xo) A letter from the agents under the Existing Agreement providing information regarding the payment in full of all fees, expenses and reimbursement amounts outstanding thereunder due and providing for the termination thereof;
(xi) Such due diligence with respect payable to the Unencumbered Pool as Administrative Agent and any of the Agent may reasonably requireLenders, including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and
(xiip) Such such other documents, agreements agreements, and instruments as the Agent on behalf of Administrative Agent, or any Lender through the Lenders Administrative Agent, may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Loan Agreement (Equity One, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the BorrowerBorrowers, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the BorrowerBorrowers, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the each State in which the each Borrower is organized, and a duly authorized officer or similar representative of the such Borrower, as applicable, to be true and complete, of the corporate charter or other formation document of the such Borrower as in effect on such date of certification;
(v) A certificate of good standing or certificate of similar meaning with respect to the each Borrower issued as of a recent date by the Secretary of State of the state of formation of the each such Borrower and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the such Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the each Borrower with respect to each of the officers of the such Borrower authorized to execute and deliver the Loan Documents to which the such Borrower is a party, and in the case of the Borrower Representative, each of the officers of the Borrower such Person authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Borrowers of (i) the by-laws of such PersonBorrower, if a corporation, the operating agreement of such PersonBorrower, if a limited liability company, the partnership agreement of such PersonBorrower, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Borrower to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated Certificate and an Availability Certificate calculated as of the Effective Date, based on financial results as of June 30, 2021 and after Date (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(x) A letter from the agents agent under the Existing Agreement Original Credit Agreement, providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereofthereof (including the termination of all Liens securing such credit facilities);
(xi) The Eligible Real Estate Qualification Documents required by the Agent for each Unencumbered Property included in the Unencumbered Pool as of the Effective Date shall have been delivered to the Agent at the Borrowers’ expense and shall be in form and substance satisfactory to the Agent;
(xii) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiixiii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower EPR and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the any Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower EPR and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the any Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the any Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of each Bank to make Advances and the Lenders to effect or permit the occurrence obligation of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter L/C Issuers to issue Letters of Credit, pursuant to the terms and conditions of this Agreement, is subject to the following conditions precedent:
(a) The precedent that the Administrative Agent shall have received each of the following, each dated on or before the date hereof, in form and substance satisfactory to the Administrative Agent:
(ia) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes This Agreement, executed by the BorrowerBorrower and each Bank, and, to the extent requested by any Bank, an executed Note payable to each Lender (if requested by the order of such Lender) and complying with the applicable provisions of Section 2.9;Bank, respectively.
(iiib) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer Certified copies of the State in which resolutions of the Board of Directors of the Borrower is organizedapproving this Agreement, each Note, each Letter of Credit Application, each Letter of Credit and each Notice of Borrowing, and a duly authorized officer or similar representative of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to each such Loan Document and certified copies of the restated certificate of incorporation and bylaws of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;.
(vc) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation or an Assistant Secretary of the Borrower certifying the names and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each true signatures of the officers of the Borrower authorized to execute and deliver the sign each Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents Document to which it is a party;party and the other documents to be delivered hereunder.
(viiid) The Fees then due and payable under Section 3.6(c)A favorable opinion of Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., counsel for the Borrower, to be delivered to, and any other Fees payable to for the benefit of, the Banks and the Administrative Agent, at the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as express instruction of the Effective DateBorrower, based on financial results substantially in the form of Exhibit C and as of June 30, 2021 and after giving pro forma effect to such other matters as any Bank through the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Administrative Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(be) In the good faith judgment A favorable opinion of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇, Senior Vice President and General Counsel of the Agent Borrower, to be delivered to, and for the benefit of, the Banks and the Lenders:
(i) There shall not have occurred or become known to Administrative Agent, at the Agent or any express instruction of the Lenders Borrower, in substantially the form of Exhibit D and as to such other matters as any event, condition, situation or status since Bank through the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could may reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documentsrequest.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall Interim Lenders will be obliged to comply with Clause 5.4 (Interim Lenders' participation - Loans) in relation to any Utilisation if, on or before the Utilisation Date for that Utilisation, the Company has delivered to the Interim Facility Agent, the Majority Lenders or the Majority Arrangers, or the Interim Facility Agent, the Majority Lenders or the Majority Arrangers have received each of waived the followingrequirement to deliver, the documents and other evidence listed in Schedule 2 (Conditions precedent) (the "Initial Conditions Precedent") in form and substance satisfactory to the Interim Facility Agent, the Majority Lenders or the Majority Arrangers each acting reasonably and in good faith (unless specified therein to be in another form or substance or where any such document or evidence is expressly not required to be in form and substance satisfactory to the Interim Facility Agent, the Majority Lenders or the Majority Arrangers in accordance with the terms of in Schedule 2 (Conditions Precedent)). Any Initial Condition Precedent (or other conditions to, or requirements in respect of, the initial Utilisation of the Interim Facilities (howsoever described)) may be amended or (including the requirement to deliver any Initial Conditions Precedent) waived by the Interim Facility Agent, the Majority Lenders or the Majority Arrangers, each acting reasonably and in good faith.
(b) The Interim Facility Agent (or, as the case may be, the Majority Lenders or the Majority Arrangers) shall notify the Company and the Interim Lenders promptly upon being satisfied that the conditions described in paragraph (a) above have been met and/or waived. Other than to the extent that the Majority Lenders or the Majority Arrangers notify the Interim Facility Agent in writing to the contrary before the Interim Facility Agent gives such notification, the Arrangers authorise (but do not require) the Interim Facility Agent to give that notification. The Interim Facility Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
(c) For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, a Utilisation Request may be delivered at any time prior to:
(i) Counterparts the delivery of this Agreement executed by each (or any waiver of the parties hereto;requirement to deliver) the Initial Conditions Precedent; and/or
(ii) Notes executed by the Borrower, payable to each Lender (if requested by any or all such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, Initial Conditions Precedent being confirmed as having been delivered in a form and substance acceptable to Agent’s counsel;that is satisfactory.
(ivd) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing or certificate of similar meaning with respect Pursuant to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporationCP Satisfaction Letter, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Interim Facility Agent, the Titled Agents Majority Lenders and the Lenders on or prior to Majority Arrangers have confirmed that they have received and are satisfied with all Initial Conditions Precedent and confirm and agree that the Effective Date;
(ix) A Compliance CertificateInitial Conditions Precedent, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use requirements of the proceeds of the Loans to be funded on the Effective Date;
paragraphs (xa) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any eventthis Clause 4.1, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documentsare irrevocably satisfied.
Appears in 1 contract
Sources: Interim Facilities Agreement
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts counterparts of this Agreement executed by each of the parties hereto;
(ii) except in the case of a Lender that has notified the Administrative Agent in writing that it elects not to receive Notes, Revolving Notes payable to each Lender that was not a party to the Existing Credit Agreement and to each Lender that was party to the Existing Credit Agreement that is changing the amount of its Commitment and Bid Rate Notes executed by the Borrower, Borrower payable to each Lender that was not a party
(if requested a) executed by such Lender) and complying with the applicable provisions of Section 2.9Borrower;
(iii) An a reaffirmation of the Guaranty executed by each of the Borrower's Subsidiaries party thereto;
(iv) an opinion of ▇▇▇▇▇▇▇ LLP, counsel to the Borrower, and addressed to the Agent Administrative Agent, the Issuing Bank and the Lenders, Lenders and covering the matters set forth in form and substance acceptable to Agent’s counselExhibit N;
(ivv) A copy, the declaration of trust of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationMaryland;
(vvi) A a certificate of good standing (or certificate of similar meaning meaning) with respect to the Borrower issued as of a recent date by the Secretary of State of the state State of formation of the Borrower Maryland and a certificate certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vivii) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party with respect to each of the officers of the Borrower such Person authorized to execute and deliver the Loan Documents to which the Borrower such Person is a party, and each in the case of the officers Borrower, authorized to execute and deliver on behalf of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote Requests;
(viiviii) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (iA) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity Borrower and (iiB) all corporate, partnership, member or other necessary action taken by such Person the Borrower to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) The Fees a Transfer Authorizer Designation Form effective as of the Agreement Date;
(x) [intentionally omitted];
(xi) evidence that the Fees, if any, then due and payable under Section 3.6(c)3.6., together with all other fees, expenses and any other Fees reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requirehave been paid; and
(xii) Such such other documents, agreements documents and instruments as the Agent on behalf of Administrative Agent, or any Lender through the Lenders Administrative Agent, may reasonably request.; and
(b) In the good faith judgment of the Agent and the LendersAdministrative Agent:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except as set forth in Schedule 6.1(i))for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiiiv) The Borrower and its Subsidiaries each other Loan Party shall have received provided all approvalsinformation requested by the Administrative Agent and each Lender in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party2001)); and
(ivv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 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 It is a Loan or the issuance of a Letter of Credit, is subject condition precedent to the following conditions precedent:
(a) The Agent effectiveness of this Agreement that Buyer shall have received the following documents, each of the following, which shall be in form and substance satisfactory to Buyer, except to the Agentextent waived by Buyer in its sole discretion:
(ia) Counterparts of this Agreement executed by each of the Program Documents shall be duly executed and delivered by all of the parties heretothereto and shall each be dated as of the date;
(iib) Notes executed by the Borrower, payable to each Lender one or more certificates of Seller’s secretary (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative officer) attesting to certain factual matters, certifying the text of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing Seller’s articles or certificate of similar meaning with respect to incorporation and bylaws or other governing charter documents, certifying the Borrower issued as of a recent date by the Secretary of State text of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functionsresolution(s) of the Borrower with respect to each board of the officers directors or managers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize Seller authorizing the execution, delivery and performance of this Agreement, and certifying the Loan Documents incumbency and the signatures of those officers of Seller authorized to execute and deliver, on behalf of Seller, this Agreement, each Mortgage Note endorsement, each Assignment in Blank, and all other instruments or documents to be executed and delivered pursuant hereto (Buyer being entitled to rely thereon until a new certificate has been furnished to Buyer upon which it is a partyBuyer shall thereafter be entitled to rely);
(viiic) The Fees then due financial statements of Seller and, if applicable, its Subsidiaries, on a consolidated basis) containing a balance sheet as of the most recent fiscal year-end of Seller (the “Statement Date”) and payable under Section 3.6(c)related statements of income, changes in shareholders’ equity and cash flows for the period ended on the Statement Date, and any other Fees payable a balance sheet as of the Interim Date and related statement of income for the period ended on the Interim Date, all prepared in accordance with GAAP applied on a basis consistent with prior periods and, in the case of the statements as of the Statement Date, audited by independent certified public accountants of recognized standing acceptable to the Agent, the Titled Agents and the Lenders on or prior to the Effective DateBuyer;
(ixd) A Compliance Certificatesuch other financial statements, dated public record search reports, legal opinions and other documents and statements as of Buyer may require under the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Datecircumstances;
(xe) A letter from opinions of counsel to Seller have been waived as a condition to the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereofexecution hereof;
(xif) Such due diligence with respect UCC lien searches against Seller and tax lien searches and judgment searches against Seller, each in the appropriate jurisdictions, the results of which shall be satisfactory to the Unencumbered Pool as the Agent may reasonably requireBuyer in its sole and exclusive discretion; and
(xiig) Such other documentsBuyer’s completion, agreements and instruments as the Agent on behalf to its sole satisfaction, of the Lenders may reasonably request.
(b) In the good faith judgment on-site due diligence of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Seller and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documentsoperations.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders any Lender to effect or permit the occurrence of the make its first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions terms of Section 2.92.8.(a);
(iii) An opinion of Bake▇ & ▇ost▇▇▇▇▇ ▇▇▇, counsel to the Borrower, addressed to the Agent and the Lenders, in substantially the form and substance acceptable to Agent’s counselof Exhibit H;
(iv) A copy, The Certificate of Incorporation of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationDelaware;
(v) A certificate of long form good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state State of formation of the Borrower Delaware and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditConversion;
(vii) Copies (certified by the Secretary or Assistant Secretary (or other individual performing similar functionsof the Borrower) of the bylaws of the Borrower and of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary corporate action taken by such Person the Borrower to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due A copy of (x) each of the documents, instruments and payable under Section 3.6(cagreements evidencing any of the Indebtedness described on Schedule 7.1.(g); (y) each Material Contract and (z) each of the documents, instruments and agreements evidencing any other Fees payable to of the Agenttransactions described on Schedule 10.12., in each case certified as true, correct and complete by the Titled Agents and chief executive officer or chief financial officer of the Lenders on or prior to the Effective DateBorrower;
(ix) Evidence that all insurance required to be maintained by the Borrower and the Subsidiaries under the terms of the Loan Documents is in effect;
(x) The Fees, if any, then due under Section 3.6.;
(xi) A Compliance Certificate, dated Certificate calculated on a pro forma basis as of the Effective Date, Agreement Date based on financial results information for the fiscal quarter ending December 31, 1997;
(xii) An Unencumbered Pool Certificate calculated as of June 30January 31, 2021 and after 1998 giving pro forma effect to the financing contemplated by this Agreement and the use consummation of the proceeds of the Loans to be funded on the Effective Date;
transactions contemplated hereby (x) A letter from the agents under the Existing Agreement providing information regarding including the payment in full of amounts outstanding thereunder and providing for any Indebtedness referred to in the termination thereoffollowing subsection);
(xixiii) Such due diligence A pay-out letter from each holder of any Indebtedness being paid in full with respect the proceeds of the initial borrowing of Loans hereunder, setting forth, among other things, the total amount of Indebtedness owing by the Borrower to such holder, such holder's confirmation that effective upon payment in full of such Indebtedness that all Liens securing such Indebtedness will be automatically terminated, and appropriate wire transfer instructions to effect the Unencumbered Pool as the Agent may reasonably requirepayment in full of such Indebtedness; and
(xiixiv) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of each Lender to make its initial Syndicated Loan and the Lenders to effect or permit the occurrence right of the first Credit Event hereunder, whether as Borrower to request the making of a the initial Negotiated Bid Loan or the issuance of a Letter of Credit, is Competitive Bid Loan are subject to the following conditions precedent:
(a) The precedent that the Administrative Agent shall have received each on or before the earlier of the date of the initial Syndicated Loan or the making of the initial Negotiated Bid Loan or Competitive Bid Loan the following, each in form and substance satisfactory to the AgentLenders:
(ia) Counterparts A duly executed counterpart of this Agreement executed by each of the parties heretoAgreement;
(iib) The Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true each duly executed and complete, delivered by the Borrower;
(c) A duly executed certificate of the corporate charter Secretary or other formation document Assistant Secretary of the Borrower as in effect on such date which certificate shall certify: (i) the names and true signatures of certificationthe officers of the Borrower, authorized to sign this Agreement, the Notes and the other documents contemplated hereby; (ii) the by-laws of the Borrower; and (iii) a copy of the resolutions of the Borrower's Board of Directors,
(a) the execution, delivery and performance of this Agreement and the Notes and (b) the Borrowings contemplated hereunder;
(vd) A certificate copy of good standing or certificate the Certificate of similar meaning with respect to Incorporation of the Borrower issued Borrower, certified as of a recent date by the Secretary of State of the state State of formation Delaware;
(e) A good standing certificate for the Borrower certified as of a recent date by the Secretaries of State of Delaware and Florida;
(f) A favorable opinion of Sull▇▇▇▇ & ▇rom▇▇▇▇, ▇▇unsel to the Borrower, substantially in the form of EXHIBIT F-1 attached hereto, and a favorable opinion of corporate counsel to the Borrower, substantially in the form of EXHIBIT F-2 attached hereto;
(g) A certificate signed by a duly authorized officer of the Borrower substantially in the form of EXHIBIT G attached hereto, stating that:
(i) The representations and a certificate warranties contained in Section 4.1 hereof are true and correct on and as of qualification to transact business or other comparable certificates issued by each Secretary the Effective Date as though made on and as of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectsuch date;
(viii) A certificate To the best of incumbency signed by the Secretary such officer's knowledge, no event has occurred and is continuing which constitutes a Default or Assistant Secretary (or other individual performing similar functions) an Event of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;Default; and
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiiii) The Fees then due Existing Credit Facilities have been paid in full and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to canceled as of the Effective Date;
(ixh) A Compliance Certificate, dated as Evidence satisfactory to the Managing Agents of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use termination of the proceeds Existing Credit Facilities and repayment of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts any outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requireindebtedness thereunder; and
(xiii) Such other documents, agreements Payment to the Managing Agents and instruments as their Affiliates of any fees agreed to be paid by the Agent on behalf Borrower in connection with the structuring and syndication of the Lenders may reasonably requestFacilities.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Harris Corp /De/)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Credit Issuer to issue the initial Letter of Credit pursuant to the terms and conditions of this Agreement is subject to the following conditions precedent:
(a) The Agent condition precedent that the Letter of Credit Issuer shall have received each on or before the day of issuance of the initial Letter of Credit the following, each dated on or before such day, in form and substance reasonably satisfactory to the Agent:Letter of Credit Issuer (the first day when all such conditions have been satisfied or waived is hereinafter referred to as the "Effective Date"):
(a) Duly executed signature pages to this Agreement and the CitiDirect Documents (including by facsimile or other electronic means) in a sufficient number of signed counterparts as requested by the Letter of Credit Issuer.
(b) A certificate of the Secretary or an Assistant Secretary of each Applicant certifying (i) Counterparts of this Agreement executed by each the resolutions of the parties hereto;
board of directors of such Applicant authorizing the execution of each Credit Document to which such Applicant is a party, (ii) Notes executed by the Borrowercharter and bylaws or other applicable organizational documents of such Applicant, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An certificates of existence, good standing and qualification from appropriate government officials with respect to each Applicant, (iv) all other documents evidencing any necessary company action and governmental, shareholder and third-party consents, approvals and filings, if any, with respect to each such Credit Document and the transactions thereunder, and (v) the names and true signatures of the officers (or agents) authorized to sign each Credit Document to be executed by it.
(c) A certificate of a Responsible Officer of Cameron certifying (i) that the representations and warranties contained in each Credit Document are true and correct as of the Effective Date, (ii) as to the satisfaction of all conditions set forth in this Section 3.01, (iii) no Event of Default or Default exists on the Effective Date or would result therefrom, (iv) the absence of any Material Adverse Effect since the date of Cameron's last audited financial statements, and (v) the annual Consolidated audited financial statements of Cameron and its Subsidiaries for the fiscal year ended December 31, 2009 and the quarterly Consolidated unaudited Consolidated financial statements of Cameron and its Subsidiaries for the fiscal quarters ended March 31, 2010 and June 30, 2010, in each case delivered to the Letter of Credit Issuer prior to the Effective Date, are true and correct copies of such financial statements, fairly present the Consolidated financial condition of Cameron as of such dates, and were, to the best of such officer's knowledge, prepared in conformity with GAAP.
(d) Certificates of existence, good standing and qualification from appropriate state officials with respect to Cameron and each Subsidiary Applicant and foreign equivalents for each Non-U.S. Applicant.
(e) A legal opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel to the BorrowerApplicants, addressed including without limitation certain specific no-conflicts opinions to the Agent JPMorgan Credit Agreement and the LendersCameron's other debt documents, in form and substance acceptable reasonably satisfactory to Agent’s counsel;the Letter of Credit Issuer.
(ivf) A copylegal opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, certified Esq., in-house counsel to the Applicants, in form and substance reasonably satisfactory to the Letter of Credit Issuer.
(g) Evidence of appointment by each Non-U.S. Applicant of CT Corporation System as its domestic process agent in accordance with Section 7.17.
(h) The audited Consolidated financial statements of Cameron and its Subsidiaries dated as of a recent date December 31, 2009 and unaudited Consolidated financial statements of Cameron and its Subsidiaries dated as of March 31, 2010 and June 30, 2010.
(i) All documents required for the establishment of the Reimbursement Account, executed by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;Applicant.
(vj) A certificate of good standing There shall exist no pending or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business threatened litigation, request, directive, injunction, stay, order, or other comparable certificates issued by each Secretary of State (and any state department of taxationproceeding since December 31, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified 2009 that could reasonably be expected to have a Material Adverse Effect;.
(vik) A certificate All documentation and other information that the Applicants are required by bank regulatory authorities to deliver to the Letter of incumbency signed Credit Issuer under applicable "know your customer" and anti-money laundering rules and regulations, including Title III of the Patriot Act, that has been identified by the Secretary or Assistant Secretary (or other individual performing similar functions) Letter of Credit Issuer and notified to the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;Applicants.
(viil) Copies certified Evidence of payment by the Secretary or Assistant Secretary (or other individual performing similar functions) Applicants of all accrued fees, expenses and disbursements required to be paid by the Borrower Applicants on the date hereof, including the fees and expenses of (i) counsel to the by-laws Letter of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;Credit Issuer.
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiim) Such other documents, governmental certificates, conditions, agreements and instruments lien searches as the Agent on behalf Letter of the Lenders Credit Issuer may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Continuing Agreement for Letters of Credit (Cameron International Corp)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each Lender (if that has requested by such Lender) that it receive a Note and complying with the applicable provisions of Section 2.92.12. and the Swingline Note executed by the Borrower;
(iii) An opinion of counsel to The Guaranty executed by the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselParent;
(iv) A copyAn opinion of the general counsel of the Parent and the other Loan Parties, addressed to the Administrative Agent, the Lenders and the Swingline Lender, addressing the matters set forth in Exhibit I;
(v) An opinion of ▇▇▇▇▇ Day, counsel to the Administrative Agent, addressed to the Administrative Agent, the Lenders and the Swingline Lender, addressing the 72 enforceability of the Loan Documents and such matters as the Administrative Agent shall reasonably request;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary of the Parent with respect to each of the officers of the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which the Parent or the Borrower is a party and to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation), on behalf of the Borrower, Notices of Revolving Borrowing, Notice of Term Loan Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing and requests for Letters of Credit;
(vii) a certified copy (certified by the Secretary or Assistant Secretary of the Parent) of all necessary action taken by the Parent to authorize the execution, delivery and performance of the Loan Documents to which either the Parent or the Borrower is a party;
(viii) the declaration of trust of the Parent and the certificate of limited partnership of the Borrower, in each case, certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, formation of the corporate charter or other formation document of the Borrower as in effect on such date of certificationPerson;
(vix) A certificate a Certificate of good standing Good Standing or certificate of similar meaning with respect to the Parent and the Borrower issued as of a recent date by the Secretary of State of the state State of formation of the Borrower each such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower each such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vix) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Parent and the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a Parent and the limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a partyBorrower;
(viiixi) The the Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Administrative Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxii) A a Compliance Certificate, dated as of the Effective Date, based on financial results Certificate calculated as of June 30, 2021 and after 2018, giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(xxiii) A letter from a Beneficial Ownership Certification;
(xiv) a Notice of Revolving Borrowing;
(xv) evidence reasonably satisfactory to the agents Administrative Agent that the Revolving Commitments (as defined in the Existing Credit Agreement) under the Existing Credit Agreement providing information regarding have been permanently reduced to zero, and that no Revolving Lender (as defined in the payment Existing Credit Agreement) has any Revolving Credit Exposure (as defined in full of amounts outstanding thereunder and providing for the termination thereofExisting Credit Agreement) thereunder;
(xixvi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such such other documents, agreements and instruments as the Administrative Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Administrative Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Corporate Office Properties, L.P.)
Initial Conditions Precedent. The obligation Closing Date shall be deemed to have occurred upon the satisfaction of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:precedent (the "Initial Conditions Precedent"):
(ai) The Agent Lender shall have received each of the followingagreements, opinions, reports, approvals, consents, certificates and other documents set forth on the closing document list attached hereto as Schedule 16(a) (the "Closing Documents"), each of which documents shall be satisfactory in both form and substance satisfactory to Lender and Lender's counsel, which such Closing Documents shall include, without limitation, legal opinions from counsel for Borrower and the Guarantors opining as to such matters that may be required by Lender and its counsel, including certain matters as to the Agent:
(i) Counterparts validity and enforceability of this Agreement executed by each of Lender's security interests in the parties hereto;Collateral.
(ii) Notes executed by Since March 31, 2010, no Material Adverse Change shall have occurred and no action or proceeding shall be pending, or to the knowledge of Borrower, threatened against the Borrower, payable any Guarantor or any of their respective assets that might have a Material Adverse Effect with respect to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;Borrower or any Guarantor.
(iii) An opinion Lender shall have received payment in full of counsel all fees and expenses payable to it by Borrower or any other Person in connection herewith, on or before disbursement of the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;initial Loans hereunder.
(iv) A copyThe Collateral shall be free of all liens and encumbrances, certified as of a recent date by the appropriate officer of the State in which the Borrower is organizedother than Permitted Liens, and Borrower shall have obtained any lien release documents or instruments required by Lender with respect to any such lien on the assets of Borrower or any Guarantor (other than a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;Permitted Lien).
(v) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the The Borrower and a certificate of qualification each Guarantor shall have executed and delivered to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of Lender all such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, instruments and agreements and instruments as the Agent on behalf of the Lenders may which Lender determines are reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documentshereby.
Appears in 1 contract
Sources: Loan and Security Agreement (Dynasil Corp of America)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to the order of each Lender (or Designated Lender, if requested by such Lenderapplicable) and complying with the applicable provisions of Section 2.92.11., and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyAn opinion of King & Spalding LLP, counsel to the Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, substantially in the form of Exhibit M;
(v) The certificate of partnership of the Borrower certified as of a recent date by the appropriate officer Secretary of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationGeorgia;
(vvi) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of Georgia;
(vii) A certificate of incumbency signed by the Secretary or Assistant Secretary of GP Sub with respect to each of the officers of GP Sub authorized to execute and deliver on behalf of the Borrower the Loan Documents to which the Borrower is a party and the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viii) Copies, certified by the Secretary or Assistant Secretary of GP Sub, of (i) the partnership agreement of the Borrower and (ii) all corporate (or comparable) action taken by GP Sub to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(ix) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the state of formation of the Borrower and a such Guarantor;
(x) A certificate of qualification good standing or certificate of similar meaning with respect to transact business or other comparable certificates each Guarantor issued as of a recent date by each the Secretary of State (and any of the state department of taxation, as applicable) formation of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectsuch Guarantor;
(vixi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor with respect to each of the officers of the Borrower such Guarantor authorized to execute and deliver the Loan Documents to which the Borrower such Guarantor is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viixii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of the Borrower of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxiv) A Compliance Certificate, dated Certificate calculated as of the Effective Date, based on financial results as of June September 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date2003;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiixv) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred (i) subsequent to September 30, 2003, any material adverse change in the business, properties, financial condition or become known to the Agent or any operations of the Lenders Borrower and its Subsidiaries taken as a whole, or (ii) any eventchanges in the business, properties, financial condition, situation or status since the date operations of the information contained in Borrower and its Subsidiaries that would cause the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered included in the Information Memorandum dated October 16, 2003, distributed to the Agent Lenders to be materially inaccurate, taken as a whole, as of the Closing Date (it being understood that actual results may vary from such projections, forecasts, and the Lenders prior similar forward-looking information, and do not and are not intended to the Agreement Date provide any guarantee or assurance that has had or could reasonably actual results will be expected to result in a Material Adverse Effectconsistent therewith);
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The BOK shall have no obligation to make the Initial Advance or any subsequent Advance, to issue any Letter of Credit or to make any extension of Credit under the Hedging Loan unless BOK shall have received all of the Lenders following at its office in Denver, Colorado, duly executed and delivered and in form, substance and date satisfactory to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedentBOK:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and a certificate of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably requestNote.
(b) In An “Omnibus Certificate” of an officer, member or manager of Borrower, which shall contain the good faith judgment names and signatures of the Agent officers, members or managers of Borrower authorized to execute Loan Documents and the Lenders:
(i) There which shall not have occurred or become known certify to the Agent or any truth, correctness and completeness of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to following exhibits attached thereto: (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i))copy of the articles of organization of Borrower and all amendments thereto, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability a copy of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The operating agreement of Borrower and its Subsidiaries shall have received all approvals, consents and waiversamendments thereto, and shall have made (3) a copy of the resolutions of the members or given all necessary filings and noticesmanagers of Borrower, as shall be required to consummate applicable, authorizing this Agreement and the transactions contemplated hereby hereby.
(c) A “Compliance Certificate” of an officer, member or manager of Borrower in which such person certifies to the satisfaction of the conditions set out in subsections (a), (b), and (c) of Section 4.2 below.
(d) The Security Documents, including without limitation any and all additional Security Documents required to be executed and delivered so that the occurrence Security Documents cover a percentage by value of the Borrowing Base Properties satisfactory to BOK.
(e) Such title opinions, supplemental title opinions, UCC searches and other title information concerning Borrower’s title to the Borrowing Base Properties or any default under, conflict with portions thereof as may be satisfactory to BOK.
(f) Evidence satisfactory to BOK that the Collateral has been and continues to be operated in a reasonable and prudent manner without giving rise to any liabilities or violation of (1) obligations under any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; andEnvironmental Law.
(ivg) There shall not have occurred or exist any The fee payable upon the execution and delivery of this Agreement pursuant to Section 3.4(d) above and, if so requested by BOK, reimbursement for BOK’s estimated legal fees and other material disruption of financial or capital markets that could reasonably be expected to materially expenses incurred in connection herewith.
(h) Any and adversely affect the transactions contemplated by the all other Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans pursuant to Section 2.1. is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender (if other than any Lender that has requested by such Lenderthat it not receive a Note) and complying with the applicable provisions of Section 2.92.8.;
(iii) The Guaranty executed by the Parent and any Material Subsidiary existing as of the Effective Date;
(iv) An opinion of the general counsel of the Parent and the other Loan Parties, addressed to the Agent and the Lenders addressing the matters set forth in Exhibit F;
(v) An opinion of ▇▇▇▇▇▇ & Bird, LLP, counsel to the BorrowerAgent, addressed to the Agent and the Lenders, in form addressing the enforceability of the Loan Documents and substance acceptable to Agent’s counselsuch matters as the Agent shall reasonably request;
(ivvi) A copy, certified as a certificate of a recent date incumbency signed by the appropriate officer Secretary or Assistant Secretary of the State in Parent with respect to each of the officers of the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which the Parent or the Borrower is organized, a party and a duly authorized officer to execute and deliver (or similar representative make by telephone in the case of the Borrower, to be true and complete, Notices of the corporate charter Conversion or other formation document Continuation) on behalf of the Borrower as in effect on such date the Notice of certificationBorrowing, Notices of Conversion, and Notices of Continuation;
(vvii) A a certified copy (certified by the Secretary or Assistant Secretary of the Parent) of all necessary action taken by the Parent to authorize the execution, delivery and performance of the Loan Documents to which either the Parent or the Borrower is a party;
(viii) the certificate or articles of incorporation, articles of organization, certificate of good standing limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Parent, the Borrower and each Guarantor, certified by the Secretary or Assistant Secretary of the applicable Loan Party;
(ix) a Certificate of Good Standing or certificate of similar meaning with respect to the Parent, the Borrower and each Guarantor (and in the case of a limited partnership, the general partner of such Guarantor) issued as of a recent date by the Secretary of State of the state State of formation of the Borrower each such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vix) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor with respect to each of the officers of the Borrower such Person authorized to execute and deliver the Loan Documents to which the Borrower such Person is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viixi) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Parent, the Borrower and each Guarantor of (i) the by-laws of such Person, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and entity;
(iixii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor of all corporate, partnership, member or other necessary action taken by such Person each Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) The the Fees then due and payable under Section 3.6(c), 3.6. and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxiv) A a Compliance Certificate, dated Certificate calculated as of the Effective DateDecember 31, based on financial results as of June 302011, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(xxv) A letter the Notice of Borrowing from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing Borrower for the termination thereof;
(xi) Such due diligence with respect Loans indicating how the proceeds thereof are to be made available to the Unencumbered Pool as Borrower, and if any of the Agent may reasonably requireLoans initially are to be LIBOR Loans, the Interest Period thereof; and
(xiixvi) Such such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (Corporate Office Properties 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 Initial Loan or the issuance of a Letter of Credit, Borrowing is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, Borrower payable to each Lender (if other than any Lender that has requested by such Lendernot to receive a Note) and complying with the applicable provisions of Section 2.92.10 (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An The Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) A favorable opinion of counsel to the BorrowerObligors, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified addressing such matters as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationAgent may reasonably require;
(v) A certificate The Governing Documents of good standing the Borrower, each Guarantor and each general partner or certificate managing member (or Person performing similar functions) of similar meaning with respect to the Borrower issued such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vi) A good standing certificate with respect to the Borrower, each Guarantor and each general partner or managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditConversion;
(viiviii) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiiix) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees and invoiced expenses payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixx) A pro forma Compliance Certificate, dated Certificate calculated as of the Effective Date, based on financial results as of June September 30, 2021 and 2014, after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereofLoans;
(xi) Such due diligence with respect A certificate signed by a Responsible Officer of the Borrower certifying that each Property to be treated as an Unencumbered Asset on the Effective Date satisfies all of the requirements for an Unencumbered Pool as Asset set forth in the Agent may reasonably requiredefinition thereof;
(xii) The documentation and other information requested by any Lender that is required by regulatory authorities under the applicable “know your customer” rules and regulations; and
(xiixiii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsSeptember 30, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date 2014 that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;; and
(iii) The Borrower Borrower, the other Obligors and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (Columbia Property Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, Borrower payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.12, and the Swingline Note executed by the Borrower payable to the Swingline Lender (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copy, certified as of a recent date The Pledge Agreement executed by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate favorable opinion of good standing or certificate of similar meaning with respect counsel to the Borrower issued Obligors, addressed to the Agent, the Lenders and the Swingline Lender, addressing such matters as Agent may reasonably require;
(vi) The Governing Documents of the Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vii) A good standing certificate with respect to the Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Borrowing Base Properties owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(viviii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation Continuation, Notices of Conversion and Notices of Conversion Swingline Borrowings and to request the issuance of Letters of Credit;
(viiix) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiix) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixxi) A pro forma Compliance Certificate, dated Certificate calculated as of the Effective DateNovember [ ], based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date2010;
(xxii) A letter from the agents under the Existing Agreement providing information regarding the payment in full Borrowing Base Certificate calculated as of amounts outstanding thereunder and providing for the termination thereofNovember [ ], 2010 showing compliance with Section 2.13;
(xixiii) Such due diligence Each of the conditions set forth in Section 7.17 shall have been satisfied with respect to the Unencumbered Pool as the Agent may reasonably requireCollateral; and
(xiixiv) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Borrower, the other Obligors, and its their respective Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Effective Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(iii) The Borrower Borrower, the other Obligors and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Wells Core Office Income Reit Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each Lender (if that has requested by such Lender) that it receive a Note and complying with the applicable provisions of Section 2.92.12. and the Swingline Note executed by the Borrower;
(iii) An opinion of counsel to The Guaranty executed by the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselParent;
(iv) A copyAn opinion of the general counsel of the Parent and the other Loan Parties, addressed to the Administrative Agent, the Lenders and the Swingline Lender, addressing the matters set forth in Exhibit I;
(v) An opinion of ▇▇▇▇▇▇ & Bird, LLP, counsel to the Administrative Agent, addressed to the Administrative Agent, the Lenders and the Swingline Lender, addressing the enforceability of the Loan Documents and such matters as the Administrative Agent shall reasonably request;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary of the Parent with respect to each of the officers of the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which the Parent or the Borrower is a party and to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation), on behalf of the Borrower, Notices of Revolving Borrowing, Notice of Term Loan Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing and requests for Letters of Credit;
(vii) a certified copy (certified by the Secretary or Assistant Secretary of the Parent) of all necessary action taken by the Parent to authorize the execution, delivery and performance of the Loan Documents to which either the Parent or the Borrower is a party;
(viii) the declaration of trust of the Parent and the certificate of limited partnership of the Borrower, in each case, certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, formation of the corporate charter or other formation document of the Borrower as in effect on such date of certificationPerson;
(vix) A certificate a Certificate of good standing Good Standing or certificate of similar meaning with respect to the Parent and the Borrower issued as of a recent date by the Secretary of State of the state State of formation of the Borrower each such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower each such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vix) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Parent and the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a Parent and the limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a partyBorrower;
(viiixi) The the Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Administrative Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxii) A a Compliance Certificate, dated Certificate calculated as of the Effective DateMarch 31, based on financial results as of June 302015, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(xxiii) A letter from the agents under the Existing Agreement providing information regarding the payment in full a Notice of amounts outstanding thereunder and providing for the termination thereofTerm Loan Borrowing;
(xixiv) Such due diligence with respect a Notice of Revolving Borrowing;
(xv) a copy of a fully executed amendment to the Unencumbered Pool Term Loan Agreement, amending the terms of the Term Loan Agreement so that it contains terms and definitions that are substantially the same as the Agent may reasonably require; andterms of Sections 6.1.(h), 8.4., 9.4., 9.7. and 10.1(e)(i) and the definitions of “Recourse Indebtedness”, “Capitalization Rate”, “Eligible Ground Lease”, “Eligible Unencumbered Property”, “Net Operating Income” and “S&P” in each case, set forth in this Agreement;
(xiixvi) Such such other documents, agreements and instruments as the Administrative Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Administrative Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Corporate Office Properties, L.P.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each Lender (or Designated Lender, if requested by such Lenderapplicable) and complying with the applicable provisions of Section 2.92.11., and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copy, The certificate or articles of incorporation of the Borrower certified as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer Secretary or similar representative Assistant Secretary of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certification;
(v) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower its incorporation and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies, certified by the Secretary or Assistant Secretary of the Borrower, of (i) the bylaws of the Borrower and (ii) all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(viii) The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor that is not an Immaterial Subsidiary certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Guarantor;
(ix) A certificate of good standing or certificate of similar meaning with respect to each Guarantor that is not an Immaterial Subsidiary issued as of a recent date by the Secretary of State of the state of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(x) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor that is not an Immaterial Subsidiary with respect to each of the officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xi) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor that is not an Immaterial Subsidiary of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixii) An opinion of counsel to the Loan Parties (other than the Immaterial Subsidiaries), addressed to the Agent, the Lenders and the Swingline Lender, addressing the matters set forth in Exhibit M;
(xiii) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxiv) A Compliance Certificate, dated Certificate calculated as of the Effective Date, based on financial results as of June September 30, 2021 and after 2005 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require); and
(xiixv) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, Borrower payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.12, and the Swingline Note executed by the Borrower payable to the Agent (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyfavorable opinion of counsel to the Obligors, certified addressed to the Agent, the Lenders and the Swingline Lender, addressing such matters as of a recent date by the appropriate officer of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationAgent may reasonably require;
(v) A certificate The Governing Documents of good standing the Borrower, each Guarantor and each general partner, managing member (or certificate Person performing similar functions) of similar meaning with respect to the Borrower issued such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vi) A good standing certificate with respect to the Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Unencumbered Assets owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation Continuation, Notices of Conversion and Notices of Conversion Swingline Borrowings and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiiix) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full pro forma Compliance Certificate calculated as of amounts outstanding thereunder and providing for the termination thereofDecember 31, 2009;
(xi) Such due diligence with respect A certificate signed by a Responsible Officer of the Borrower certifying that each Property to be treated as an Unencumbered Asset on the Effective Date satisfies all of the requirements for an Unencumbered Asset set forth in the definition thereof;
(xii) A pay-off letter setting forth the amount necessary to repay and cancel in full the existing credit facility under that certain Amended and Restated Credit Agreement, dated as of May 7, 2009, among the Borrower, the Lenders signatory thereto and Wachovia Bank, National Association (the “Original Credit Agreement”), in form and substance reasonably satisfactory to the Unencumbered Pool as Agent, which amount set forth in such pay-off letter shall be paid on (or simultaneously with) the Agent may reasonably requireEffective Date; and
(xiixiii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Borrower, the other Obligors, and its their respective Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(iii) The Borrower Borrower, the other Obligors and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Wells Real Estate Investment Trust Ii Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.10., and the Swingline Note executed by the Borrower;
(iii) The Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) An opinion of S▇▇▇▇▇▇▇ & Worcester LLP, counsel to the BorrowerLoan Parties, and an opinion of V▇▇▇▇▇▇ LLP, special Maryland counsel to the Loan Parties, in each case addressed to the Agent and the Lenders, in form Lenders and substance acceptable to Agent’s counselcovering such matters as are customary for financings of the type contemplated by the Loan Documents and such other matters as the Agent may reasonably request;
(ivv) A copy, The declaration of trust of the Borrower certified as of a recent date by the appropriate officer Department of Assessments and Taxation of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationMaryland;
(vvi) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary Department of Assessments and Taxation of the State of the state of formation of the Borrower Maryland and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have have, in each instance, a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary or Assistant Secretary of the Borrower, of all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(ix) The Governing Documents of each Guarantor certified as of a recent date by the Secretary of State of the State of formation of such Guarantor;
(x) A certificate of good standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by the Secretary of State of the State of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have, in each instance, a Material Adverse Effect;
(xi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the Borrower officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xii) Copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) A copy of (x) all Leases, all Ancillary Agreements, the Advisory Agreement, and each other Material Contract, in each case certified as true, correct and complete by the chief operating officer or chief financial officer of the Borrower, and (y) a Lease Abstract with respect to each Lease for the Unencumbered Senior Housing Assets;
(xiv) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixxv) A Compliance Certificate, dated as of the Effective Date, based Certificate calculated on financial results a pro forma basis as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date2005;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiixvi) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the BorrowerBorrowers, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) An opinion of counsel to the BorrowerBorrowers, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counsel;
(iv) A copy, certified as of a recent date by the appropriate officer of the each State in which the each Borrower is organized, and a duly authorized officer or similar representative of the such Borrower, as applicable, to be true and complete, of the corporate charter or other formation document of the such Borrower as in effect on such date of certification;
(v) A certificate of good standing or certificate of similar meaning with respect to the each Borrower issued as of a recent date by the Secretary of State of the state of formation of the each such Borrower and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the such Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the each Borrower with respect to each of the officers of the such Borrower authorized to execute and deliver the Loan Documents to which the such Borrower is a party, and in the case of the Borrower Representative, each of the officers of the Borrower such Person authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the each Borrower of (i) the by-laws of such PersonBorrower, if a corporation, the operating agreement of such PersonBorrower, if a limited liability company, the partnership agreement of such PersonBorrower, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Borrower to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated Certificate and an Availability Certificate calculated as of the Effective Date, based on financial results as of June 30, 2021 and after Date (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(x) A letter Letters from the agents under the Existing Revolving Agreement and Existing Term Agreement, providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereofthereof (including the termination of all Liens securing such credit facilities);
(xi) The Eligible Real Estate Qualification Documents required by the Agent for each Unencumbered Property included in the Unencumbered Pool as of the Effective Date shall have been delivered to the Agent at the Borrowers’ expense and shall be in form and substance satisfactory to the Agent;
(xii) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xiixiii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower EPR and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the any Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower EPR and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the any Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the any Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Epr Properties)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each Lender (if other than any Lender that has requested by such Lenderthat it not receive a Note) and complying with the applicable provisions of Section 2.92.11. and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by the Parent and any Material Subsidiary existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyAn opinion of the general counsel of the Parent and the other Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, addressing the matters set forth in Exhibit H;
(v) An opinion of ▇▇▇▇▇▇ & Bird, LLP, counsel to the Agent, addressed to the Agent, the Lenders and the Swingline Lender, addressing the enforceability of the Loan Documents and such matters as the Agent shall reasonably request;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary of the Parent with respect to each of the officers of the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which the Parent or the Borrower is a party and to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing and requests for Letters of Credit;
(vii) a certified copy (certified by the Secretary or Assistant Secretary of the Parent) of all necessary action taken by the Parent to authorize the execution, delivery and performance of the Loan Documents to which either the Parent or the Borrower is a party;
(viii) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Parent, the Borrower and each Guarantor, certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, formation of the corporate charter or other formation document of the Borrower as in effect on such date of certificationPerson;
(vix) A certificate a Certificate of good standing Good Standing or certificate of similar meaning with respect to the Parent, the Borrower and each Guarantor (and in the case of a limited partnership, the general partner of such Guarantor) issued as of a recent date by the Secretary of State of the state State of formation of the Borrower each such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effectqualified;
(vix) A a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Guarantor with respect to each of the officers of the Borrower such Person authorized to execute and deliver the Loan Documents to which the Borrower such Person is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viixi) Copies copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Parent, the Borrower and each Guarantor of (i) the by-laws of such Person, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and entity;
(iixii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor of all corporate, partnership, member or other necessary action taken by such Person each Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) The the Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxiv) A a Compliance Certificate, dated as of the Effective Date, based on financial results Certificate calculated as of June 30, 2021 and after 2011, giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(xxv) A letter a statement from the agents agent under each of the Existing Agreement Credit Agreements providing information regarding the payment in full of all amounts outstanding thereunder and providing for under each of the termination thereofExisting Credit Agreements as of the Effective Date;
(xixvi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requirea Notice of Borrowing; and
(xiixvii) Such such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Corporate Office Properties Trust)
Initial Conditions Precedent. The obligations of Agent and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and the obligation of the Lenders ▇▇▇▇▇▇ to effect or permit the occurrence of the first Credit Event hereundermake any loan, whether as the making of a Loan or the issuance of a Letter of Credit, is are subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes the Term Note payable to Lender executed by the Borrower▇▇▇▇▇▇▇▇, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.92.5;
(iii) An opinion of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselGuaranty Agreement executed by ▇▇▇▇▇▇▇▇▇;
(iv) A copythe certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of Borrower, certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer of formation of such Person (or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationcomparable governmental body);
(v) A a certified copy (certified by the Secretary of Borrower) of (A) the limited liability company agreement of Borrower and (B) all necessary action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents;
(vi) certificates of incumbency, if applicable, from ▇▇▇▇▇▇▇▇ signed by the Secretary of ▇▇▇▇▇▇▇▇, with respect to each of the officers of ▇▇▇▇▇▇▇▇ (A) authorized to execute and deliver on behalf of Borrower the Loan Documents and (B) authorized to execute and deliver on behalf of Borrower Notices of Borrowing;
(vii) a certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation organization of the Borrower and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) A certificate all fees and expenses of incumbency signed by the Secretary or Assistant Secretary Agent (or other individual performing similar functionsincluding reasonable attorney’s fees and expenses of counsel to Agent) of the Borrower incurred in connection with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which Documents, including without limitations the Borrower is a partypreparation, negotiation, execution and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) The Fees then due and payable under Section 3.6(c), and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;Documents; and
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably require; and
(xii) Such such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably requestrequest to the extent required under the EB-5 program.
(b) In the good faith judgment of the Agent and the LendersAgent:
(i) There there shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in have a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened against Borrower which could reasonably be expected to (1A) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect enjoin the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;Documents; and
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1A) any Applicable Law or (2B) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of it or its properties is are bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Loan Agreement (Car Tech, LLC)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to each Lender (or Designated Lender, if requested by such Lenderapplicable) and complying with the applicable provisions of Section 2.92.11., and the Swingline Note executed by the Borrower;
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copyAn opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Agent, the Lenders and the Swingline Lender, substantially in the form of Exhibit M;
(v) The articles of incorporation of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative state of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationits incorporation;
(vvi) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower its incorporation and a certificate certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party, party and each of the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viiviii) Copies Copies, certified by the Secretary or Assistant Secretary of the Borrower, of (i) the bylaws of the Borrower and (ii) all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party;
(ix) Except as specifically contemplated in Section 5.3.(b) hereof, the articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Guarantor certified as of a recent date by the Secretary of State of the state of formation of such Guarantor;
(x) Except as specifically contemplated in Section 5.3.(b) hereof, a certificate of good standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by the Secretary of State of the state of formation of each such Guarantor and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Guarantor is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(xi) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the Borrower officers of such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a party;
(xii) Except as specifically contemplated in Section 5.3.(b) hereof, copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) of (i) the by-laws of such PersonGuarantor, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Person Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiixiii) The Fees then due and payable under Section 3.6(c)3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ixxiv) A Compliance Certificate, dated Certificate calculated as of the Effective Date, based on financial results as of June September 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date2002;
(xxv) A letter from the respective agents under the Existing Agreement providing information regarding Credit Agreements to the payment in full of effect that such agreements have terminated and all amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requirehave been paid; and
(xiixvi) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (United Dominion Realty Trust Inc)
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, this Agreement is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, a Note payable to each Lender (if requested by such Lender) not party to the Original Credit Agreement and a replacement Note payable to each Lender whose Commitment is being increased pursuant to this Agreement, in each case complying with the applicable provisions terms of Section 2.92.13.(a);
(iii) An opinion ratification by the Guarantors and Operating Lessees of counsel their obligations under the Loan Documents to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselwhich they are parties;
(iv) A copysuch amendments to the Security Documents as Administrative Agent may require;
(A) an opinion of ▇▇▇▇▇ Lovells US LLP, counsel to the Borrower and the other Loan Parties, and (B) to the extent required by Administrative Agent, an opinion of local counsel reasonably satisfactory to Administrative Agent, as special counsel to the Loan Parties, each addressed to the Administrative Agent and the Lenders and collectively covering the matters set forth in Exhibit H;
(vi) to the extent required by Administrative Agent, the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer state of organization or similar representative formation of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationPerson;
(vvii) A to the extent required by Administrative Agent, a certificate of good standing (or certificate of similar meaning meaning) with respect to the Borrower each Loan Party issued as of a recent date by the Secretary of State of the state of formation of the Borrower each such Person and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) A to the extent required by Administrative Agent, a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party with respect to each of the officers of the Borrower such Person authorized to execute and deliver the Loan Documents to which the Borrower such Person is a party, and each of the officers of the Borrower authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(viiix) Copies to the extent required by Administrative Agent, copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party of (iA) the by-laws of such Person, if a corporation, the operating agreement of such Personagreement, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity (or, in lieu of the foregoing, a certificate of such Secretary or Assistant Secretary (or other individual performing similar functions) that the applicable document or documents delivered on or about the date of the Original Credit Agreement have not been modified or amended and remain in full force and effect) and (iiB) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) The Fees a Compliance Certificate for the Parent Guarantor’s fiscal quarter ended September 30, 2010;
(xi) Intentionally Omitted;
(xii) to the extent required by Administrative Agent, title insurance endorsements to the title insurance policies previously issued to Administrative Agent.
(xiii) to the extent required by Administrative Agent, UCC, tax, judgment and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions indicating that there are no Liens of record with respect to the assets of each such Loan Party other than Permitted Liens;
(xiv) evidence that the Fees, if any, then due and payable under Section 3.6(c)3.5., together with all other fees, expenses and any other Fees reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(x) A letter from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof;
(xi) Such due diligence with respect to the Unencumbered Pool as the Agent may reasonably requirehave been paid; and
(xiixv) Such such other documents, agreements documents and instruments as the Agent on behalf of Administrative Agent, or any Lender through the Lenders Administrative Agent, may reasonably request.; and
(b) In the good faith judgment No Default or Event of the Agent and the Lenders:
(i) There Default shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of its properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents to which it is a partyexist; and
(ivc) There shall not have occurred The representations and warranties made or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated deemed made by the Borrower and each other Loan DocumentsParty in this Agreement and in the other Loan Documents delivered pursuant to Section 6.1. shall be true and correct.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders Lender to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent Lender shall have received each of the following, in form and substance satisfactory to the AgentLender:
(i) Counterparts At least two counterparts of this Agreement executed by each of the parties heretoBorrower;
(ii) Notes The Note executed by the Borrower, payable to each Lender (if requested by such Lender) and complying with the applicable provisions of Section 2.9;
(iii) The Guaranty executed by the Parent and each other Guarantor existing as of the Effective Date;
(iv) An opinion of counsel to the BorrowerBorrower and the other Loan Parties, addressed to the Agent Lender, and covering the Lenders, matters set forth in form and substance acceptable to Agent’s counselExhibit D;
(ivv) A copy, The certificate of limited partnership of the Borrower certified as of a recent date by the appropriate officer Secretary of State of the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on such date of certificationDelaware;
(vvi) A certificate of good standing or certificate of similar meaning with respect to the Borrower issued as of a recent date by the Secretary of State of the state State of formation of the Borrower Delaware and a certificate certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a partyDocuments, and each of the officers of the Borrower then authorized to deliver Notices of Borrowingthe request for the Loan referred to in clause (ix) below, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditConversion;
(viiviii) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (i) the by-laws of such Person, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Personagreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member partnership or other necessary action taken by such Person the Borrower to authorize the execution, delivery and performance of the Loan Documents to which it is a partyDocuments;
(viiiix) The Fees then due and payable under Section 3.6(c), and any other Evidence that all Fees payable to the Agent, the Titled Agents and the Lenders Lender on or prior to the Effective Date;
(ix) A Compliance Certificate, dated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective DateDate have been paid;
(x) A letter request from the agents under the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing Borrower for the termination thereof;
(xi) Such due diligence with respect Loan indicating the requested principal amount, how the proceeds thereof are to be made available to the Unencumbered Pool as Borrower, and if any portion of the Agent may reasonably requireLoan is to be a LIBOR Loan initially, the Interest Period therefor; and
(xiixi) Such other documents, agreements and instruments as the Agent on behalf of the Lenders Lender may reasonably request.; and
(b) In the good faith judgment of the Agent and the LendersLender:
(i) There shall not have occurred or become known to the Agent Lender a material adverse change in the business, condition (financial or any otherwise), operations, performance, and properties of the Lenders any eventParent, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its the other Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in taken as a Material Adverse Effectwhole since June 30, 2006;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(iii) The 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 (1) any Applicable Law or (2) any agreement, document or instrument to which the Parent, the Borrower or any Subsidiary other Loan Party is a party or by which any of its them or their respective properties is bound, including without limitation, the Existing Credit Agreement, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (U-Store-It Trust)
Initial Conditions Precedent. The In the event that the Lenders holding Unfunded Commitments elect to make a Loan as provided in this Agreement, the obligation of the such Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, Borrower payable to each Lender (if requested by funding a Loan on the date of such Lender) first Credit Event and complying with the applicable provisions of Section 2.92.10 (which Notes shall be promptly forwarded by the Agent to the applicable Lender);
(iii) An opinion The Guaranty executed by each Guarantor existing as of counsel to the Borrower, addressed to the Agent and the Lenders, in form and substance acceptable to Agent’s counselEffective Date;
(iv) A copy, certified The Security Documents relating to the Collateral Pool Properties and the Equity Collateral existing as of a recent date by the appropriate officer of Effective Date, together with the State in which the Borrower is organized, and a duly authorized officer or similar representative of the Borrower, to be true and complete, of the corporate charter or other formation document of the Borrower as in effect on Eligible Real Estate Qualification Documents for such date of certificationCollateral Pool Properties;
(v) A certificate favorable opinion of good standing counsel to the Obligors, addressed to the Agent, addressing such matters as Agent may reasonably require (provided that such opinion shall not address compliance with zoning or certificate “best available remedies” under applicable state law or the enforceability of similar meaning any provisions of the Guaranty which reference California law (except with respect to the Borrower issued Collateral Properties located in California);
(vi) The Governing Documents of Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons certified as of a recent date by the Secretary of State of the state State of formation of the Borrower applicable Person;
(vii) A good standing certificate with respect to Borrower, each Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a certificate of qualification to transact business or other comparable certificates issued recent date by each the appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Borrower Collateral Pool Properties owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualified and where the failure to be so qualified could reasonably be expected to have would have, in each instance, a Material Adverse Effect;
(viviii) A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower with respect Borrower, each Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of the Borrower or other Persons authorized to execute and deliver the Loan Documents to which the Borrower any of them is a party, party and each of the officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of CreditConversion;
(viiix) Copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) of the Borrower such Persons of (i) the by-laws of such Personall partnership, if a corporation, the operating agreement of such Person, if a limited liability company, the partnership agreement of such Person, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (iicomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party;
(viiix) A copy of each document or agreement evidencing any of the Indebtedness described in Schedule 6.1(g) as Agent may request, in each case certified as true, correct and complete by the chief operating officer or chief financial officer of the Borrower;
(xi) The Fees then due and payable under Section 3.6(c)3.6, and any other Fees payable to the Agent, the Titled Agents Agent and the Lenders on or prior to the Effective Date;
(ixxii) A pro forma Compliance Certificate, dated Certificate calculated as of the Effective Date, based on financial results as of June 30, 2021 and after giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date;
(xxiii) A letter from Evidence of the agents under closing of the Existing Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereofSenior Loan;
(xixiv) Such due diligence with respect to An original executed counterpart of the Unencumbered Pool as the Agent may reasonably requireIntercreditor Agreement; and
(xiixv) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower Borrower, the other Obligors, their respective Subsidiaries and its Subsidiaries the Collateral Pool Properties delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect (except as set forth in Schedule 6.1(i)), or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(iii) The Borrower Borrower, the other Obligors and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices, notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any Subsidiary other Obligor is a party or by which any of its them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and;
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents; and
(v) The Formation Transactions and the IPO shall have been consummated, the Parent shall have received gross cash proceeds from the IPO in an amount not less than $4,500,000.00, and the Agent and the Lenders shall be satisfied with the debt, ownership, management and capitalization transactions relating to Borrower and Parent.
Appears in 1 contract
Sources: Mezzanine Credit Agreement (NNN Apartment REIT, Inc.)