Conditions Precedent/Effectiveness Conditions This Amendment shall be effective upon the date of satisfaction of all of the following conditions precedent (the “Effective Date”):
(a) Agent shall have received this Amendment fully executed by the Borrowers;
(b) Agent shall have received updated schedule to the Loan Agreement, if any;
(c) Agent shall have received a Guaranty, fully executed by the New Guarantor;
(d) Agent shall have received a Pledge Agreement, fully executed by the New Guarantor;
(e) Agent shall have received a copy of the Asset Transfer Agreement;
(f) Agent shall have received a copy of the resolutions in form and substance reasonably satisfactory to Agent, of the board of directors or managers of New Guarantor, authorizing the execution, delivery and performance of this Amendment, the Guaranty, and any related agreements, instruments, or documents to which New Guarantor is a party, certified by the Secretary or an Assistant Secretary of New Guarantor;
(g) Agent shall have received a certificate of the Secretary or an Assistant Secretary of New Guarantor as to the incumbency and signature of the officers of New Guarantor executing this Amendment the Guaranty, and any related agreements, instruments, or documents to which New Guarantor is a party, together with evidence of the incumbency of such Secretary or Assistant Secretary;
(h) Agent shall have received an incumbency certificate for each Borrower identifying all authorized officers with specimen signatures, certified by the Secretary of such Borrower;
(i) Agent shall have received copies of the bylaws and memorandum of association of New Guarantor, together with a certificate of good standing or equivalent certification in the jurisdiction of formation of New Guarantor;
(j) Agent shall have received the results of UCC, tax lien, and judgment searches against New Guarantor;
(k) Agent shall have received an opinion of counsel of New Guarantor;
(l) Agent shall have received updated certificates of insurance naming New Guarantor as an additional insured with respect to liability insurance and lender loss payee with respect to property insurance;
(m) Agent shall have received reasonably satisfactory evidence that the Guarantor Restructuring shall be consummated; and
(n) No Default or Event of Default shall have occurred and be continuing under the Loan Agreement.
Conditions Precedent to Borrowings 5.1 Conditions Precedent to the Initial Borrowing of TBC 37 5.2 Conditions Precedent to Each Committed Borrowing of TBC 38 5.3 Conditions Precedent to Each Bid Borrowing of TBC 38 5.4 Conditions Precedent to the Initial Borrowing of a Subsidiary Borrower 39 5.5 Conditions Precedent to Each Committed Borrowing of a Subsidiary Borrower 39 5.6 Conditions Precedent to Each Bid Borrowing of a Subsidiary Borrower 40
Conditions for Advance and Conditions to Closing Section 7.1.
Conditions Precedent to Borrowing The obligation of the Liquidity Provider to make an Advance on the occasion of each Borrowing shall be subject to the conditions precedent that the Effective Date shall have occurred and, prior to the date of such Borrowing, the Borrower shall have delivered a Notice of Borrowing which conforms to the terms and conditions of this Agreement and has been completed as may be required by the relevant form of the Notice of Borrowing for the type of Advances requested.
Conditions Precedent to Initial Advances The obligation of each Bank to make its initial Advance on or after the Closing Date is subject to the conditions precedent that (i) all principal, accrued interest, fees, expenses, costs and other amounts outstanding under the terms of each of the Prior Agreements, accrued to the Closing Date, shall have been paid, and the commitments of the lenders thereunder to extend credit shall have terminated, (ii) the Agent shall have received, for the benefit of the Banks, the one time upfront fees due and payable on the Closing Date pursuant to the Joint Fee Letter and (iii) the Agent shall have received on or before the day of the initial Borrowing the following, each dated the Closing Date, in form and substance satisfactory to the Agent and in sufficient copies for each Bank:
(a) A fully executed copy of this Agreement, of the Local Currency Addendum and of the Japan Local Currency Addendum.
(b) Certified copies of the resolutions of the Board of Directors of each Borrower evidencing corporate authority to execute and deliver this Agreement, the Local Currency Addendum (if applicable), the Japan Local Currency Addendum (if applicable), the Notes and the other documents to be delivered hereunder, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement, the Local Currency Addendum (if applicable), the Japan Local Currency Addendum (if applicable), the Notes and the other documents to be delivered hereunder.
(c) A certificate of the Secretary or an Assistant Secretary of each Borrower certifying the names and true signatures of the officers of such Borrower authorized to sign this Agreement, the Local Currency Addendum (if applicable), the Japan Local Currency Addendum (if applicable) and the Notes and the other documents to be delivered hereunder.
(d) A favorable opinion of counsel for each of Caterpillar and CFSC, given upon their express instructions, substantially in the form of Exhibit D hereto.
(e) A favorable opinion of Sidley Austin LLP, counsel for the Agent, given upon the Agent’s express instructions, substantially in the form of Exhibit E hereto. In addition, (i) the obligation of each Bank requesting Notes to make its initial Advance is subject to the further condition precedent that the Agent shall have received, on or before the day of the initial Borrowing, the Notes dated the Closing Date and payable to the order of such Bank, (ii) the obligation of the Local Currency Banks to make the initial Advances under the Local Currency Addendum shall be subject to any further conditions set forth in the Local Currency Addendum and (iii) the obligation of the Japan Local Currency Banks to make the initial Advances under the Japan Local Currency Addendum shall be subject to any further conditions set forth in the Japan Local Currency Addendum.
Conditions for Closing The Lender shall not be obligated to disburse the Bridge Loan until the Borrower shall have fulfilled and/or furnished to the Lender, at the Borrower’s own cost and expense, the following conditions (unless waived in writing by Lender):
(a) The Loan Documents duly executed by the Borrower and each Guarantor (as applicable) along with evidence that all financing statements and other filings contemplated thereby have been made and the Security Documents to be placed of record or filed shall have been duly executed and recorded and filed in all appropriate offices and shall constitute a first and prior Lien on the Collateral, subject only to those matters set forth in Section 6.01 of this Agreement and all taxes, fees and charges in connection therewith shall have been paid.
(b) Evidence, in form and substance satisfactory to the Lender, that the Aircraft, business and all assets of the Borrower are adequately insured as required by Section 5.04.
(c) Payment of the Origination Fee and all reimbursable costs and expenses pursuant to the Loan Documents, together with evidence of payment to other parties of all fees and costs which Borrower is required under the Loan Documents to pay by the Closing Date.
(d) Lien searches (including Uniform Commercial Code, judgments, bankruptcy and taxes) with respect to the Borrower and each Guarantor (at the state and county level) from the jurisdiction of its organization and each other jurisdiction in which it maintains an office, including the home airport of the Aircraft, (i) showing no existing Liens on the Collateral pledged by such Persons except as permitted hereunder or (ii) accompanied by necessary termination statements, release statements and any other types of release in connection with any impermissible Liens disclosed by such searches that have been filed or for which satisfactory arrangements have been made for such filing on the Closing Date.
(e) With respect to the Aircraft, (i) an FAA and International Registry lien and title search acceptable to the Lender, (ii) a copy of Aircraft Registration Certificate, (iii) lien and title searches of the applicable Canadian government authorities, including without limitation under the Personal Property Security Act, in form acceptable to the Lender, (iv) evidence that the Borrower has become a Transaction User Entity (as defined in the International Registry) and appointed an administrator and a professional registry user entity, in form and substance satisfactory to the Lender, (v) reasonable evidence that the Aircraft is eligible for prompt issuance of a U.S. Certificate of Airworthiness following the Aircraft’s transfer of title to Borrower, (vi) Completed Customs and Border Protection Forms 7501 and 3461 evidencing importation into the U.S., and (vii) a copy of the airframe, engine, and avionics maintenance programs.
(f) Copies of all of the Aircraft Contracts in effect as of the Closing Date, in form and substance reasonably acceptable to the Lender.
(g) A copy of the Borrower’s and each Guarantor’s organizational documents, in form and substance satisfactory to the Lender.
(h) A certificate of existence, authorization, good standing certificate, or its equivalent of each of the Borrower and the Guarantor from the Secretary of State of such Person’s jurisdiction of incorporation/formation/organization and the Secretary of State of each other jurisdiction in which such Person is qualified to do business as a foreign corporation/company/partnership, if any.
(i) A certificate in form and substance satisfactory to Lender from the Borrower and each Guarantor, dated the Closing Date and signed on behalf of such Person by an authorized member/manager/officer of such Person certifying as to (i) true copies of the organizational documents of such Person and any amendments thereto, (ii) the resolutions of the directors/managers and/or shareholders/members (as the case may be) of such Person authorizing the execution and delivery of this Agreement and the other Loan Documents to which it is a party and (iii) the names, true signatures and incumbency of the members/managers/officers of such Person authorized to execute and deliver the Loan Documents to which it is a party. The Lender may conclusively rely on such certification unless and until a later certificate revising the prior certificate has been furnished to the Lender.
(j) A certification regarding the beneficial ownership of the Borrower, as required by the Bank Secrecy Act (31 C.F.R. §1010.230 et. seq.), as amended from time to time, the regulations promulgated thereunder, and any successor statute, in form and substance satisfactory to the Lender.
(k) Evidence, in form and substance acceptable to the Lender, that the Borrower has a tangible balance sheet equity of at least twenty percent (20%) on the Closing Date.
(l) An opinion of counsel on behalf of the Borrower and the Guarantor, dated the Closing Date, in form and substance satisfactory to the Lender in absolute discretion.
(m) An opinion of special FAA counsel, including an International Registry Priority Search Certificate, each dated the Closing Date, in form and substance satisfactory to the Lender in absolute discretion.
(n) Listing of furniture, fixtures and equipment owned by the Borrower or a certification that the Borrower does not own any, satisfactory in form and content to the Lender, indicating that the estimated value of such furniture, fixtures and equipment.
(o) An inventory of all Warranties (including copies all documentation with respect thereto) relating to the Aircraft.
(p) The Borrower shall have executed and delivered all forms, documentation and information necessary for the establishment of the Cash Collateral Account at Lender, and shall have funded the Cash Collateral into the Cash Collateral Account (either prior to the Closing Date or contemporaneously therewith).
(q) Such other instruments, documents, certificates, assurances and opinions as may be set forth in the preliminary closing checklist delivered to the Borrower in connection with this Agreement or as the Lender shall reasonably require to evidence and secure the Loan, to comply with the provisions hereof and the requirements of regulatory authorities to which the Lender is subject, all of which, including those referred to above in this Section 4.01 shall be satisfactory in form, content and substance to the Lender.
Initial Conditions Precedent The effectiveness of this Agreement and the obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, are subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to each applicable Lender (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Guarantors, if any, initially to be a party thereto;
(iv) an opinion of Xxxxxxxx & Worcester LLP, and an opinion of Xxxx Xxxxx Xxxxxxxx & Xxxx LLP, special Maryland counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect and each state in which a Collateral Property owned by such Loan Party is located;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Compliance Certificate calculated as of the Effective Date on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2017;
(x) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xii) a copy of all Operating Agreements, all Ancillary Agreements, the Business Management Agreement, the Property Management Agreement, in each case certified as true, correct and complete by the chief operating officer or chief financial officer of the Borrower; and
(xiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request;
(b) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(f) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Conditions Precedent to Initial Advance Bank’s obligation to make the initial Advance is subject to the condition precedent that Bank shall have received, in form and substance satisfactory to Bank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation:
(a) duly executed original signatures to the Loan Documents;
(b) duly executed original signatures to the Initial Warrant;
(c) the Operating Documents and long-form good standing certificates of Borrower and its Subsidiaries certified by the Secretary of State (or equivalent agency) of Borrower’s and such Subsidiaries’ jurisdiction of organization or formation and each jurisdiction in which Borrower and each Subsidiary is qualified to conduct business, each as of a date no earlier than thirty (30) days prior to the Effective Date;
(d) duly executed original signatures to the completed Borrowing Resolutions for Borrower;
(e) certified copies, dated as of a recent date, of financing statement searches, as Bank may request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the initial Advance, will be terminated or released;
(f) the Perfection Certificate of Borrower, together with the duly executed original signature thereto;
(g) a copy of Borrower’s Investors’ Rights Agreement and any amendments thereto;
(h) evidence satisfactory to Bank that the insurance policies and endorsements required by Section 6.7 hereof are in full force and effect, together with appropriate evidence showing lender loss payable and/or additional insured clauses or endorsements in favor of Bank;
(i) the completion of the Initial Audit with results satisfactory to Bank in its sole and absolute discretion; and
(j) payment of the fees and Bank Expenses then due as specified in Section 2.4 hereof.
Conditions Precedent to the Initial Extension of Credit The obligation of each Lender to make the initial extensions of credit provided for hereunder is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the conditions precedent set forth on Schedule 3.1 to this Agreement (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent).
Buyer’s Conditions for Closing Unless otherwise waived in writing, and without prejudice to Buyer’s right to terminate this Contract during the Review Period, the duties and obligations of Buyer to proceed to Closing under the terms and provisions of this Contract are and shall be expressly subject to strict compliance with, and satisfaction or waiver of, each of the conditions and contingencies set forth in this Section 9.1, each of which shall be deemed material to this Contract. In the event of the failure of any of the conditions set forth in this Section 9.1 or of any other condition to Buyer’s obligations provided for in this Contract, which condition is not waived in writing by Buyer, Buyer shall have the right at its option to terminate this Contract, in which case the Xxxxxxx Money Deposit shall be immediately returned to Buyer and each of the parties shall be relieved from further liability to the other, except as otherwise expressly provided herein, with respect to this Contract.
(a) All of Seller’s representations and warranties contained in or made pursuant to this Contract shall be true and correct in all material respects as if made again on the Closing Date.
(b) Buyer shall have received all of the instruments and conveyances listed in Section 10.2.
(c) Seller shall have performed, observed and complied in all material respects with all of the covenants, agreements, closing requirements and conditions required by this Contract to be performed, observed and complied with by Seller, as and when required hereunder.
(d) Third Party Consents in form and substance reasonably satisfactory to Buyer shall have been obtained and furnished to Buyer.
(e) The Existing Franchise Agreement shall have been terminated.
(f) The Existing Management Agreement shall have been terminated and Buyer and the Manager shall have executed and delivered the New Management Agreement consistent with the form attached hereto as Exhibit E.
(g) Buyer and Franchisor shall have executed (or Franchisor has unconditionally committed to execute) the New Franchise Agreement.
(h) Seller shall have complied, in all material respects, with its obligations under the thirteen (13) other purchase contracts (“Other Contracts”), each of even date herewith and all of which are more particularly described on Exhibit K hereto; and Seller shall be unconditionally prepared to close on the sale of the hotel properties described in the Other Contracts (“Other Properties”) simultaneously with Closing on the Property.
