Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make an Advance or of any Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with the Initial Extension of Credit: (a) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) A Note payable to the order of each Lender requesting the same. (ii) A security agreement in substantially the form of Exhibit G hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, the “Security Agreement”), duly executed by each Loan Party that owns Borrowing Base Assets, together with: (A) acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents, covering the Collateral described therein, (B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above and in such other jurisdictions specified by the Administrative Agent that name any Loan Party as debtor, together with copies of such other financing statements, (C) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby, (D) certificated Equity Interests in each direct and indirect Subsidiary that owns or leases a Borrowing Base Asset and stock powers and membership interest powers with respect thereto executed in blank, all in form and substance acceptable to the Administrative Agent, (E) evidence of the insurance required by the terms of the Security Agreement, (F) copies of the Assigned Agreements referred to in the Security Agreement, including, without limitation, each of the Hotel Management Agreements with respect to each Borrowing Base Asset and the Interstate Master Agreement, together with a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties, (G) certified copies of each management agreement and franchise agreement, and all amendments thereto, entered into on or before the Closing Date with respect to each Hotel Asset comprising a Borrowing Base Asset, (H) certified copies of all leases (including, without limitation, all leases with Affiliates) and Material Contracts relating to each Borrowing Base Asset, (I) a subordination agreement, in form and substance satisfactory to the Administrative Agent, executed and delivered by the manager of each Hotel Asset comprising a Borrowing Base Asset, (J) a franchisor comfort letter in form and substance satisfactory to the Administrative Agent, executed and delivered by each franchisor of each Hotel Asset comprising a Borrowing Base Asset, and (K) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority Liens created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters, UCC termination statements, account control agreements and landlords’ and bailees’ waiver and consent agreements). (iii) Deeds of trust, trust deeds and mortgages in substantially the form of Exhibit H hereto (together with each other deed of trust, trust deed and mortgage delivered pursuant to Section 5.01(j), in each case as amended, the “Mortgages”) and assignments of leases and rents in substantially the form of Exhibit J hereto (together with each other assignment of leases and rents delivered pursuant to Section 5.01(j), in each case as amended, the “Assignments of Leases”) (in each case with such changes as may be required to account for local law matters and otherwise satisfactory in form and substance to the Administrative Agent) covering all Borrowing Base Assets, duly executed by the appropriate Loan Party, together with: (A) evidence that counterparts of the Mortgages and Assignments of Leases have been duly executed, acknowledged and delivered on or before the day of the Initial Extension of Credit and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the collateral described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all required affidavits, tax forms and filings pertaining to any applicable documentary stamp, intangible and mortgage recordation taxes have been executed and delivered by all appropriate parties and are in form suitable for filing with all applicable governmental authorities, (B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements (including zoning endorsements where available) and in amounts (not to exceed $85,000,000 in the aggregate) acceptable to the Administrative Agent, issued by title insurers acceptable to the Administrative Agent (it being acknowledged that First American Title Insurance Company is a title insurer acceptable to the Administrative Agent as of the Closing Date), insuring the Mortgages to be valid first and subsisting Liens in favor of the Collateral Agent on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances (as defined in the Mortgages), and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) as the Administrative Agent may deem necessary or desirable, (C) American Land Title Association/American Congress on Surveying and Mapping form surveys for which all necessary fees have been paid, dated no more than 45 days before the date of their delivery to the Collateral Agent, certified to the Administrative Agent, the Collateral Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other plottable dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent, (D) zoning reports as to the properties described in the Mortgages, in form and substance reasonably acceptable to the Administrative Agent and from Planning and Zoning Resources Corp. or another professional firm reasonably acceptable to the Administrative Agent, (E) engineering, soils, seismic, environmental and other similar reports as to the properties described in the Mortgages, in form and substance and from professional firms reasonably acceptable to the Administrative Agent,
Appears in 1 contract
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make an Advance or of any Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes, as to which one original of each shall be sufficient) in sufficient copies for each Lender Party:
(i) A Note duly executed by the Borrower and payable to the order of each Lender requesting that has requested the same.
(ii) A security agreement in substantially the form of Exhibit G hereto [Intentionally Omitted].
(together with iii) As to each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, the “Security Agreement”), duly executed by each Loan Party that owns Borrowing Base Assets, together withUnencumbered Asset:
(A) acknowledgment a current UCC search performed by a search firm acceptable to the Administrative Agent showing that the applicable Loan Party identified in Schedule II is not subject to any Liens of record other than Permitted Liens, and
(B) evidence satisfactory to the Administrative Agent that the applicable owner or lessee, as applicable, of such Unencumbered Asset shall be in compliance with the requirements of Section 5.02(p).
(iv) This Agreement duly executed by the Loan Parties and the other parties hereto.
(v) Certified copies of proper financing statementsthe resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party (the “Closing Authorizing Resolution”), and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party.
(vi) A copy of a certificate of the Secretary of State (or equivalent authority) of the jurisdiction of incorporation, organization or formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near (but prior to) the Closing Date, certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a true and correct copy of the charter, certificate of limited partnership, limited liability company agreement or other organizational document of such Loan Party, general partner or managing member, as the case may be, and each amendment thereto on file in such Secretary’s office, (B) that such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party, general partner or managing member, as the case may be, on file in such Secretary’s office, and (C) such Loan Party, general partner or managing member, as the case may be, is duly incorporated, organized or formed and in good standing or presently subsisting under the laws of the jurisdiction of its incorporation, organization or formation.
(vii) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or any general partner or managing member of a Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably be expected to result in a Material Adverse Effect, dated reasonably near (but prior to) the Closing Date, stating, with respect to each such Loan Party, general partner or managing member, that such Loan Party, general partner or managing member, as the case may be, is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate.
(viii) A certificate of each Loan Party and of each general partner or managing member (if any) of each Loan Party, signed on behalf of such Loan Party, general partner or before managing member, as applicable, by its President, a Vice President, Executive Chairman or Chief Manager and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the day Closing Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit under Credit), certifying as to (A) the Uniform Commercial Code absence of all jurisdictions that any amendments to the Administrative Agent may deem necessary constitutive documents of such Loan Party, general partner or desirable managing member, as applicable, since the date of the certificate referred to in order to perfect and protect the first priority liens and security interests created under the Collateral DocumentsSection 3.01(a)(vi), covering the Collateral described therein,
(B) completed requests for informationa true and correct copy of the bylaws, dated operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, as applicable, as in effect on or before the date on which the resolutions referred to in Section 3.01(a)(v) were adopted and on the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above and in such other jurisdictions specified by the Administrative Agent that name any Loan Party as debtor, together with copies of such other financing statements,
(C) evidence the due incorporation, organization or formation and good standing or valid existence of such Loan Party, general partner or managing member, as applicable, as a corporation, limited liability company or partnership organized under the laws of the completion jurisdiction of all other recordings its incorporation, organization or formation and filings the absence of any proceeding for the dissolution or with respect to the Security Agreement that the Administrative Agent may deem necessary liquidation of such Loan Party, general partner or desirable in order to perfect and protect the Liens created thereby,
managing member, as applicable, (D) certificated Equity Interests in each direct and indirect Subsidiary that owns or leases a Borrowing Base Asset and stock powers and membership interest powers with respect thereto executed in blank, all in form and substance acceptable to the Administrative Agent,
(E) evidence truth of the insurance required by representations and warranties contained in the terms Loan Documents as though made on and as of the Security Agreement,
(F) copies of the Assigned Agreements referred to in the Security Agreement, including, without limitation, each of the Hotel Management Agreements with respect to each Borrowing Base Asset and the Interstate Master Agreement, together with a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties,
(G) certified copies of each management agreement and franchise agreement, and all amendments thereto, entered into on or before the Closing Date with respect to each Hotel Asset comprising a Borrowing Base Asset,
(H) certified copies of all leases (including, without limitation, all leases with Affiliates) and Material Contracts relating to each Borrowing Base Asset,
(I) a subordination agreement, in form and substance satisfactory to the Administrative Agent, executed and delivered by the manager of each Hotel Asset comprising a Borrowing Base Asset,
(J) a franchisor comfort letter in form and substance satisfactory to the Administrative Agent, executed and delivered by each franchisor of each Hotel Asset comprising a Borrowing Base Asset, and
(K) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority Liens created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters, UCC termination statements, account control agreements and landlords’ and bailees’ waiver and consent agreements).
(iii) Deeds of trust, trust deeds and mortgages in substantially the form of Exhibit H hereto (together with each other deed of trust, trust deed and mortgage delivered pursuant to Section 5.01(j), in each case as amended, the “Mortgages”) and assignments of leases and rents in substantially the form of Exhibit J hereto (together with each other assignment of leases and rents delivered pursuant to Section 5.01(j), in each case as amended, the “Assignments of Leases”) (in each case with such changes as may be required to account for local law matters and otherwise satisfactory in form and substance to the Administrative Agent) covering all Borrowing Base Assets, duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages and Assignments of Leases have been duly executed, acknowledged and delivered on or before the day date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.
(ix) A certificate of the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan Party, or of the general partner or managing member of such Loan Party, authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(x) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, historical operating statements (if any), audited annual financial statements for the year ending December 31, 2014 of the Parent Guarantor, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available and for the three months then ended and financial projections for the Parent Guarantor’s consolidated operations.
(xi) [Intentionally Omitted.]
(xii) An opinion of Kleinberg, Kaplan, Xxxxx & Xxxxx, P.C., New York counsel for the Loan Parties, with respect to the matters (and in form suitable for filing or recording substantially the form) set forth in all filing or recording offices that Exhibit F-1 hereto and as to such other matters as any Lender Party through the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the collateral described therein in favor reasonably request.
(xiii) An opinion of the Collateral Agent local counsel for the benefit Loan Parties (A) from Xxxxxxx LLP in substantially the form of the Secured Parties and that all required affidavitsExhibit F-2 hereto, tax forms and filings pertaining to any applicable documentary stamp, intangible and mortgage recordation taxes have been executed and delivered by all appropriate parties and are in form suitable for filing with all applicable governmental authorities,
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies from Xxxxx, Xxxxx & Xxxxxx, LLP in substantially the form of Exhibit F-3 hereto, and (the “Mortgage Policies”C) in form and substance, with endorsements (including zoning endorsements where available) and in amounts (not to exceed $85,000,000 a Delaware opinion in the aggregate) acceptable to the Administrative Agentform of Exhibit F-4 hereto, issued by title insurers acceptable to the Administrative Agent (it being acknowledged that First American Title Insurance Company is a title insurer acceptable to the Administrative Agent as of the Closing Date), insuring the Mortgages to be valid first and subsisting Liens in favor of the Collateral Agent on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances (as defined in the Mortgages), and providing for each case covering such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) matters as any Lender Party through the Administrative Agent may deem necessary or desirable,reasonably request.
(Cxiv) American Land Title Association/American Congress on Surveying A Notice of Borrowing relating to the Initial Extension of Credit and Mapping form surveys for which all necessary fees have been paid, dated no more and delivered not less than 45 days before three (3) Business Days prior to the date of their delivery the Initial Extension of Credit.
(xv) A certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, stating that after giving effect to the Collateral AgentInitial Extension of Credit the Parent Guarantor shall be in compliance with the covenants contained in Section 5.04, certified to the Administrative Agent, the Collateral Agent and the issuer of the Mortgage Policies together with supporting information in a manner form satisfactory to the Administrative Agent showing the computations used in determining compliance with such covenants.
(b) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and its Subsidiaries, including the terms and conditions of the charter and bylaws, operating agreement, partnership agreement or other governing document of each of them.
(c) The Lender Parties shall be satisfied that all Existing Debt shall be on terms and conditions reasonably satisfactory to the Lender Parties.
(d) Before and after giving effect to the transactions contemplated by a land surveyor duly registered and licensed the Loan Documents, there shall have occurred no material adverse change in the States business, assets, properties, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Loan Parties since December 31, 2014.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to result in which a Material Adverse Effect other than the property matters described on Schedule 4.01(f) hereto (the “Material Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby, and there shall have been no material adverse change in the status, or financial effect on any Loan Party or any of its Subsidiaries, of the Material Litigation from that described on Schedule 4.01(f) hereto.
(f) All governmental and third party consents and approvals necessary in connection with the transactions contemplated by the Loan Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the Lender Parties) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lender Parties that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated by the Loan Documents.
(g) Each Subsidiary Guarantor shall have complied with the requirements of Section 5.02(p) and provided evidence of such surveys is located and acceptable compliance satisfactory to the Administrative Agent, showing .
(h) The Borrower shall have paid all buildings and other improvements, any off-site improvements, accrued fees of the location of any easements, parking spaces, rights of way, building set-back lines and other plottable dimensional regulations Administrative Agent and the absence Lender Parties and all reasonable, out-of-pocket expenses of encroachments, either by such improvements or on to such property, the Administrative Agent (including the reasonable fees and other defects, other than encroachments and other defects acceptable expenses of counsel to the Administrative Agent,
(D) zoning reports as to the properties described in the Mortgages, in form and substance reasonably acceptable to the Administrative Agent and from Planning and Zoning Resources Corp. or another professional firm reasonably acceptable to the Administrative Agent, (E) engineering, soils, seismic, environmental and other similar reports as to the properties described in the Mortgages, in form and substance and from professional firms reasonably acceptable to the Administrative Agent,).
Appears in 1 contract
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make an Advance or of any the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:
(i) A Note The Notes payable to the order of each Lender requesting the sameLenders.
(ii) A security agreement guaranty in substantially the form of Exhibit G E hereto (together with each other security agreement guaranty and security agreement guaranty supplement delivered pursuant to Section Sections 5.01(j) or 5.02(p), in each case as amended, the “Security AgreementSubsidiary Guaranty”), duly executed by each Guarantor.
(iii) Ship Mortgages for each Eligible Vessel listed on Schedule XI hereto, together with evidence that each such Ship Mortgage has been duly recorded and is in full force and effect.
(iv) Assignments of Insurances for each Eligible Vessel listed on Schedule XI hereto.
(v) Assignments of Freights and Hires for each Eligible Vessel listed on Schedule XI hereto.
(vi) Copy of the most recent appraisal of the value (as determined in accordance with the appraisal procedures set forth in the Ship Mortgages) of each Eligible Vessel listed on Schedule XI hereto by an appraiser acceptable to the Administrative Agent.
(vii) Certified copies of the resolutions of the Board of Directors of each Loan Party approving the Agreement and each other Loan Document to which it is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Agreement and each Loan Document to which it is or is to be a party.
(viii) A certificate signed by an officer of each Loan Party, dated the Initial Extension of Credit Date, certifying that owns Borrowing Base Assetsthe representations and warranties contained in each Loan Document to which such Loan Party is a party are correct on, together with:before and after giving effect to the Initial Extension of Credit and to the application of the proceeds therefrom, as though made on and as of such date (other than any such representations or warranties that, by their terms, refer to a date other than the Initial Extension of Credit Date);
(ix) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Initial Extension of Credit Date, certifying (A) acknowledgment copies as to a true and correct copy of proper financing statementsthe charter of such Loan Party and each amendment thereto on file in such Secretary’s office and (B) that such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (C) such Loan Party is duly filed incorporated and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation.
(x) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or before a Vice President and its Secretary or any Assistant Secretary, dated the day Initial Extension of Credit Date (the statements made in which certificate shall be true on and as of the Initial Extension of Credit under Date), certifying as to (A) the Uniform Commercial Code absence of all jurisdictions that any amendments to the Administrative Agent may deem necessary or desirable charter of such Loan Party since the date of the Secretary of State’s certificate referred to in order to perfect Section 3.01(a)(ix) and protect the first priority liens and security interests created under the Collateral Documents, covering the Collateral described therein,
(B) completed requests for information, dated a true and correct copy of the bylaws of such Loan Party as in effect on or before the date on which the resolutions referred to in Section 3.01(a)(vii) were adopted and on the Initial Extension of Credit Date.
(xi) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(xii) Evidence of insurance in respect of all Collateral naming the Collateral Agent as additional insured and sole loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks as is required by the Ship Mortgages and as is satisfactory to the Lender Parties.
(xiii) A Notice of Borrowing or Notice of Issuance, as applicable, and a Borrowing Base Certificate relating to the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above and in such other jurisdictions specified by the Administrative Agent that name any Loan Party as debtor, together with copies of such other financing statements,.
(Cxiv) evidence A favorable opinion of Gxxxxxxxx, Poster & Sxxxxx, counsel for the completion of all other recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby,
(D) certificated Equity Interests in each direct and indirect Subsidiary that owns or leases a Borrowing Base Asset and stock powers and membership interest powers with respect thereto executed in blank, all in form and substance acceptable to the Administrative Agent,
(E) evidence of the insurance required by the terms of the Security Agreement,
(F) copies of the Assigned Agreements referred to in the Security Agreement, including, without limitation, each of the Hotel Management Agreements with respect to each Borrowing Base Asset and the Interstate Master Agreement, together with a consent to such assignmentLoan Parties, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party D hereto and as to such Assigned Agreements other than the Loan Parties,
(G) certified copies of each management agreement and franchise agreement, and all amendments thereto, entered into on or before the Closing Date with respect to each Hotel Asset comprising a Borrowing Base Asset,
(H) certified copies of all leases (including, without limitation, all leases with Affiliates) and Material Contracts relating to each Borrowing Base Asset,
(I) a subordination agreement, in form and substance satisfactory to the Administrative Agent, executed and delivered by the manager of each Hotel Asset comprising a Borrowing Base Asset,
(J) a franchisor comfort letter in form and substance satisfactory to the Administrative Agent, executed and delivered by each franchisor of each Hotel Asset comprising a Borrowing Base Asset, and
(K) evidence that all other action that matters as any Lender Party through the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority Liens created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters, UCC termination statements, account control agreements and landlords’ and bailees’ waiver and consent agreements)reasonably request.
(iiixv) Deeds A favorable opinion of trustHolland & Knight LLP, trust deeds counsel for the Agents.
(xvi) No event has occurred and mortgages is continuing, or would result from such Initial Extension of Credit or from the application of the proceeds therefrom, that constitutes a Default.
(xvii) Evidence of class in substantially the form respect of Exhibit H hereto each Eligible Vessel listed on Schedule XI hereto.
(together with each other deed of trustxviii) Uniform Commercial Code financing statements, trust deed and mortgage delivered pursuant to Section 5.01(j)filed or for filing, in each case appropriate jurisdictions.
(xix) such other items as amended, the “Mortgages”Administrative Agent may reasonably require.
(b) The Borrower shall have paid all accrued and assignments unpaid fees of leases the Agents and rents in substantially the form Lender Parties under the Existing Credit Agreement and all accrued expenses of Exhibit J hereto the Agents (together with each other assignment including the accrued fees and expenses of leases and rents delivered pursuant to Section 5.01(j), in each case as amended, the “Assignments of Leases”) (in each case with such changes as may be required to account for local law matters and otherwise satisfactory in form and substance counsel to the Administrative Agent) covering all Borrowing Base Assets, duly executed by the appropriate Loan Party, together with:thereunder.
(Ac) evidence that counterparts The Borrower shall have paid all accrued and unpaid fees of the Mortgages Agents and Assignments of Leases have been duly executed, acknowledged the Lender Parties in connection herewith which are due and delivered payable on or before the day of prior to the Initial Extension of Credit Date and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the collateral described therein in favor accrued expenses of the Collateral Agent for the benefit of the Secured Parties and that all required affidavits, tax forms and filings pertaining to any applicable documentary stamp, intangible and mortgage recordation taxes have been executed and delivered by all appropriate parties and are in form suitable for filing with all applicable governmental authorities,
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements Agents (including zoning endorsements where available) the accrued fees and in amounts (not to exceed $85,000,000 in the aggregate) acceptable expenses of counsel to the Administrative Agent) hereunder.
(d) The Existing Credit Agreement, issued by title insurers acceptable to and the Administrative Agent (it being acknowledged that First American Title Insurance Company is a title insurer acceptable to the Administrative Agent as commitment of the Closing Datelenders thereunder, shall have been terminated (except for indemnity provisions that by their terms survive), insuring all amounts due and payable under the Mortgages to be valid first Existing Credit Agreement shall have been paid in full except for any loan principal and subsisting Liens in favor interest thereon being refinanced under this Agreement, all security under the Existing Credit Agreement shall have been terminated and released, and the issued and outstanding letters of credit issued for the account of the Collateral Agent on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances (as defined in the Mortgages), and providing for such other affirmative insurance (including endorsements for future advances Borrower by Citibank under the Loan Documents and for mechanics’ and materialmen’s Liens) as the Administrative Agent may deem necessary or desirable,
(C) American Land Title Association/American Congress on Surveying and Mapping form surveys for which all necessary fees Existing Credit Agreement shall have been paidterminated, dated no more than 45 days before the date of their delivery to the Collateral Agent, certified to the Administrative Agent, the Collateral Agent and the issuer of the Mortgage Policies except as otherwise provided here in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other plottable dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent,
(D) zoning reports as to the properties described in the Mortgages, in form and substance reasonably acceptable to the Administrative Agent and from Planning and Zoning Resources Corp. or another professional firm reasonably acceptable to the Administrative Agent, (E) engineering, soils, seismic, environmental and other similar reports as to the properties described in the Mortgages, in form and substance and from professional firms reasonably acceptable to the Administrative Agent,Section 2.16(j).
Appears in 1 contract
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make an Advance or of any the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of each of the following conditions precedent before or concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Administrative Agent (unless otherwise specified) and the Lenders, and in sufficient copies (except for the Notes) in sufficient copies ), for each Lender Party:
(i) A Note The Notes in substantially the form of Exhibit B, and Exhibit C and Exhibit F payable to the order of each the applicable Lender requesting Parties duly executed by the sameBorrower.
(ii) A security agreement guaranty in substantially the form of Exhibit G E hereto duly executed by AGT Acquisition Corp., AmuseMatte Corporation and Miramar Equipment, Inc. (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as hereafter amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Security Agreement”"SUBSIDIARY GUARANTY"), .
(iii) A guaranty in substantially the form of Exhibit E hereto duly executed by each Loan Party that owns Borrowing Base Assetsof the Devon Subsidiary Guarantors (as hereafter amended, together with:supplemented or otherwise modified from time to time in accordance with its terms, the "DEVON SUBSIDIARY GUARANTY" ).
(Aiv) acknowledgment copies A copy of proper financing statements, duly filed on or before the day a certificate of the Initial Extension Secretary of Credit under State of the Uniform Commercial Code jurisdiction of all jurisdictions that the Administrative Agent may deem necessary its incorporation or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents, covering the Collateral described therein,
(B) completed requests for informationorganization, dated on or before as of a date reasonably near to the date of the Initial Extension of Credit, listing the charter or other organizational document of each Loan Party and each amendment thereto on file in its office and certifying that (A) such amendments are the only amendments to such Loan Party's charter or other organizational document on file in its office, (B) such Loan Party has paid all effective financing franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated or organized and in good standing under the laws of the State of the jurisdiction of its incorporation or organization.
(v) A copy of a certificate of the Secretary of State of each State listed on Schedule 3.01(a)(v), dated reasonably near the date of the Initial Extension of Credit, stating that each Loan Party is duly qualified and in good standing as a foreign corporation in such State and has filed all annual reports required to be filed to the date of such certificate, except as otherwise noted on Schedule 3.01(a)(v).
(vi) A certificate of each Loan Party signed on behalf of such Loan Party's duly authorized officer and Secretary or an Assistant Secretary, dated the date of the Initial Extension of Credit (the statements filed made in such certificate shall be true on and as of the jurisdictions date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the charter or other organizational document of such Loan Party since the date of the Secretary of State's certificate referred to in clause Section 3.01(a)(iv), (AB) above a true and correct copy of the by-laws of such Loan Party, as in effect on the date of the Initial Extension of Credit, (C) the due incorporation or organization and good standing of such other jurisdictions specified by the Administrative Agent that name any Loan Party as debtora corporation organized under the laws of the jurisdiction of its incorporation or organization, together with copies and the absence of any proceeding for the dissolution or liquidation of such other financing statements,
(C) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby,
Loan Party, (D) certificated Equity Interests true and correct copies of the resolutions of the Board of Directors of each Loan Party approving this Agreement, the Notes, and each other Loan Document and the Devon Acquisition Documents to which it is or is to be a party, and (E) a true and correct copy of the charter or other organizational document of each Loan Party and each amendment thereto, certified (as of a date reasonably near the date of the Initial Extension of Credit) by the Secretary of State of the jurisdiction of its incorporation or organization as being a true and correct copy thereof.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement, the Notes, each other Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(viii) Such financial, business and other information regarding each Loan Party and each such Person's Subsidiaries as any of the Lender Parties shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, obligations under Plans, collective bargaining agreements and other arrangements with employees, audited annual financial statements dated, in each direct the case of the Borrower and indirect Subsidiary that owns or leases its Subsidiaries, December 31, 1997, and in the case of the Company and its Subsidiaries, March 31, 1998, interim financial statements dated, in the case of the Borrower and its Subsidiaries, March 31, 1998, pro forma financial statements as to the Borrower and its Subsidiaries, taken as a Borrowing Base Asset whole, and stock powers and membership interest powers with respect thereto executed in blankforecasts prepared by management of the Borrower, all in form and substance acceptable to the Administrative Agent,
(E) evidence of the insurance required by the terms of the Security Agreement,
(F) copies of the Assigned Agreements referred to in the Security Agreement, including, without limitation, each of the Hotel Management Agreements with respect to each Borrowing Base Asset and the Interstate Master Agreement, together with a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties,
(G) certified copies of each management agreement and franchise agreement, and all amendments thereto, entered into on or before the Closing Date with respect to each Hotel Asset comprising a Borrowing Base Asset,
(H) certified copies of all leases (including, without limitation, all leases with Affiliates) and Material Contracts relating to each Borrowing Base Asset,
(I) a subordination agreement, in form and substance reasonably satisfactory to the Administrative Agent, executed and delivered by the manager of each Hotel Asset comprising a Borrowing Base Asset,
(J) a franchisor comfort letter in form and substance satisfactory to the Administrative Agent, executed and delivered by each franchisor of each Hotel Asset comprising a Borrowing Base Asset, and
(K) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority Liens created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters, UCC termination statements, account control agreements and landlords’ and bailees’ waiver and consent agreements)Lender Parties.
(iii) Deeds of trust, trust deeds and mortgages in substantially the form of Exhibit H hereto (together with each other deed of trust, trust deed and mortgage delivered pursuant to Section 5.01(j), in each case as amended, the “Mortgages”) and assignments of leases and rents in substantially the form of Exhibit J hereto (together with each other assignment of leases and rents delivered pursuant to Section 5.01(j), in each case as amended, the “Assignments of Leases”) (in each case with such changes as may be required to account for local law matters and otherwise satisfactory in form and substance to the Administrative Agent) covering all Borrowing Base Assets, duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages and Assignments of Leases have been duly executed, acknowledged and delivered on or before the day of the Initial Extension of Credit and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the collateral described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all required affidavits, tax forms and filings pertaining to any applicable documentary stamp, intangible and mortgage recordation taxes have been executed and delivered by all appropriate parties and are in form suitable for filing with all applicable governmental authorities,
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements (including zoning endorsements where available) and in amounts (not to exceed $85,000,000 in the aggregate) acceptable to the Administrative Agent, issued by title insurers acceptable to the Administrative Agent (it being acknowledged that First American Title Insurance Company is a title insurer acceptable to the Administrative Agent as of the Closing Date), insuring the Mortgages to be valid first and subsisting Liens in favor of the Collateral Agent on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances (as defined in the Mortgages), and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) as the Administrative Agent may deem necessary or desirable,
(C) American Land Title Association/American Congress on Surveying and Mapping form surveys for which all necessary fees have been paid, dated no more than 45 days before the date of their delivery to the Collateral Agent, certified to the Administrative Agent, the Collateral Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other plottable dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent,
(D) zoning reports as to the properties described in the Mortgages, in form and substance reasonably acceptable to the Administrative Agent and from Planning and Zoning Resources Corp. or another professional firm reasonably acceptable to the Administrative Agent, (E) engineering, soils, seismic, environmental and other similar reports as to the properties described in the Mortgages, in form and substance and from professional firms reasonably acceptable to the Administrative Agent,
Appears in 1 contract
Samples: Credit Agreement (Applied Graphics Technologies Inc)
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make an Advance or of any Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notesitems specified in clauses (i) and (ii) below) in sufficient copies for each Lender Party:
(i) A Note payable to the order of each Lender requesting the same.
(ii) A security agreement in substantially the form of Exhibit G hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, the “Security Agreement”), duly executed by each Loan Party that owns Borrowing Base Assets, together with:
(A) acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents, covering the Collateral described therein,
(B) completed Completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements (or equivalent filings) filed in the jurisdictions referred to in clause (A) above and in such other jurisdictions specified by that the Administrative Agent may deem necessary or desirable that name any Loan Party as debtor, together with copies of such other financing statements,
(C) , and evidence of the completion of that all other recordings and filings of or with respect to the Security Agreement actions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby,
(D) certificated Equity Interests in each direct and indirect Subsidiary that owns or leases a Borrowing Base Asset and stock powers and membership interest powers with respect thereto executed in blank, all in form and substance acceptable to the Administrative Agent,
(E) evidence of the insurance required by the terms of the Security Agreement,
(F) copies of the Assigned Agreements referred to in the Security Agreement, including, without limitation, each of the Hotel Management Agreements with respect to each Borrowing Base Asset and the Interstate Master Agreement, together with a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties,
(G) certified copies of each management agreement and franchise agreement, and all amendments thereto, entered into on or before the Closing Date with respect to each Hotel Asset comprising a Borrowing Base Asset,
(H) certified copies of all leases (including, without limitation, all leases with Affiliates) and Material Contracts relating to each Borrowing Base Asset,
(I) a subordination agreement, in form and substance satisfactory to the Administrative Agent, executed and delivered by the manager of each Hotel Asset comprising a Borrowing Base Asset,
(J) a franchisor comfort letter in form and substance satisfactory to the Administrative Agent, executed and delivered by each franchisor of each Hotel Asset comprising a Borrowing Base Asset, and
(K) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority Liens created under the Security Agreement has have been taken (including, without limitation, receipt of duly executed payoff letters, letters and UCC termination statements, account control agreements and landlords’ and bailees’ waiver and consent agreementsstatements (or equivalent filings).). Digital Realty – Yen Credit Agreement
(iii) Deeds Certified copies of trust, trust deeds and mortgages in substantially the form resolutions of Exhibit H hereto the Board of Directors (together with each other deed of trust, trust deed and mortgage delivered pursuant to Section 5.01(jor equivalent body), in general partner or managing member, as applicable, of each case as amendedLoan Party and of each general partner or managing member (if any) of each Loan Party approving the transactions contemplated by the Loan Documents and each Loan Document to which it is or is to be a party, the “Mortgages”) and assignments of leases all documents evidencing other necessary corporate action and rents in substantially the form of Exhibit J hereto (together governmental and other third party approvals and consents, if any, with each other assignment of leases and rents delivered pursuant to Section 5.01(j), in each case as amended, the “Assignments of Leases”) (in each case with such changes as may be required to account for local law matters and otherwise satisfactory in form and substance respect to the Administrative Agenttransactions under the Loan Documents and each Loan Document to which it is or is to be a party.
(iv) covering all Borrowing Base AssetsA copy of a certificate of the Secretary of State (or equivalent authority (if any)) of the jurisdiction of incorporation, duly executed by the appropriate organization or formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, together with:
dated reasonably near the Closing Date, certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) evidence that counterparts as to a true and complete copy of the Mortgages charter, certificate of limited partnership, limited liability company agreement or other organizational document of such Loan Party, general partner or managing member, as the case may be, and Assignments each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to the charter, certificate of Leases limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party, general partner or managing member, as the case may be, on file in such Secretary’s office and (2) to the extent available, such Loan Party, general partner or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) such Loan Party, general partner or managing member, as the case may be, is duly incorporated, organized or formed and in good standing (if a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) or presently subsisting under the laws of the jurisdiction of its incorporation, organization or formation.
(v) A copy of a certificate of the Secretary of State (or equivalent authority (if any)) of each jurisdiction in which any Loan Party or any general partner or managing member of a Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed would not be reasonably likely to have been a Material Adverse Effect, dated reasonably near (but prior to) the Closing Date, stating, with respect to each such Loan Party, general partner or managing member, that such Loan Party, general partner or managing member, as the case may be, is duly executedqualified and in good standing (if a concept of good standing exists under the laws of the jurisdiction of the incorporation, acknowledged organization or formation of such Loan Party) as a foreign corporation, limited partnership or limited liability company in such State and delivered has filed all annual reports required to be filed to the date of such certificate.
(vi) A certificate of each Loan Party and of each general partner or managing member (if any) of each Loan Party, signed on behalf of such Loan Party, general partner or before managing member, as applicable, by its President, a Vice President and its Secretary or any Assistant Secretary or, with respect to Loan Parties that are Foreign Subsidiaries, any authorized signatory (or those of its general partner or managing member, if applicable), or in the day case of a Loan Party organized in Japan, corporate seal, dated the Closing Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the constitutive documents of such Loan Party, general partner or managing member, as applicable, since the date of the certificate referred to in Section 3.01(a)(iv), (B) a true and complete copy of the bylaws, memorandum and articles of association, operating agreement, partnership agreement or other Digital Realty – Yen Credit Agreement governing document of such Loan Party, general partner or managing member, as applicable, as in effect on the date on which the resolutions referred to in Section 3.01(a)(iii) were adopted and on the date of the Initial Extension of Credit, (C) the due incorporation, organization or formation and good standing (if a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) or valid existence of such Loan Party, general partner or managing member, as applicable, as a corporation, limited liability company or partnership organized under the laws of the jurisdiction of its incorporation, organization or formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party, general partner or managing member, as applicable, (D) the accuracy in all material respects (unless qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be true and correct in all respects) of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit (except to the extent such representations and warranties relate to an earlier date, in which such representations and warranties shall be true and correct in all material respects or all respects, as applicable, on or as of such earlier date) and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party or, with respect to Loan Parties that are Foreign Subsidiaries, any authorized signatory (or Responsible Officer of the general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures (or in the case of a Loan Party organized in Japan executing by corporate seal, (i) a certificate of seal and a certificate of full registry records both of which have been issued by the competent legal affairs bureau within three months before the date of the applicable officer’s certificate and (ii) a seal registration form (in the form prescribed by the Administrative Agent)) of the officers or other authorized signatories of such Loan Party , or of the general partner or managing member of such Loan Party, authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(viii) The audited Consolidated annual financial statements for the year ending December 31, 2017 of the Parent Guarantor and interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available.
(ix) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have reasonably requested.
(x) Evidence of insurance (which may consist of binders or certificates of insurance with respect to the blanket policies of insurance maintained by the Loan Parties that satisfies the requirements of Section 5.01(d).
(xi) An opinion of Xxxxxx & Xxxxxxx LLP, counsel for the Loan Parties, in form suitable and substance satisfactory to the Administrative Agent.
(xii) An opinion of Xxxxxxxx & Xxxxxxxx LLP, Japanese counsel for filing the Loan Parties, in form and substance satisfactory to the Administrative Agent.
(xiii) An opinion of Xxxxxxx LLP, Maryland counsel for the Loan Parties, in form and substance satisfactory to the Administrative Agent. Digital Realty – Yen Credit Agreement
(xiv) An opinion of Shearman & Sterling LLP, counsel for the Administrative Agent, in form and substance satisfactory to the Administrative Agent.
(xv) A breakage indemnity letter agreement, dated not later than the earliest applicable Notice of Borrowing Deadline, executed by the Borrowers in form and substance satisfactory to the Administrative Agent.
(xvi) One or recording more Notices of Borrowing, each dated not later than the applicable Notice of Borrowing Deadline, or Notices of Issuance, as applicable, and specifying the Initial Borrowing Date as the date of the proposed Borrowing.
(xvii) An Unencumbered Assets Certificate prepared on a pro forma basis to account for any acquisitions, dispositions or reclassifications of Assets, and the incurrence or repayment of any Debt for Borrowed Money relating to such Assets, that have occurred since June 30, 2018.
(xviii) (A) The documentation and other information reasonably requested by any Lender at least ten Business Days prior to the Closing Date in all filing or recording offices that connection with applicable "know your customer" and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act, in each case in form and substance reasonably satisfactory to such Lender, and (B) if the Borrower qualifies as a “legal entity customer” within the meaning of the Beneficial Ownership Regulation, a Beneficial Ownership Certification for the Borrowers; in each case delivered at least five Business Days prior to the Closing Date.
(xix) A letter from the Initial Process Agent addressed to the Administrative Agent may deem necessary or desirable in order confirming its agreement to create a valid first and subsisting Lien on act as the collateral described therein in favor of the Collateral Initial Process Agent for the benefit purposes of Section 9.14(c).
(xx) With respect to each Borrower that is a TMK, (x) a certified copy of such Borrower’s business commencement notification (gyoumu kaishi todoke) (including the asset liquidation plan and other attachments) affixed with a receipt stamp of the Secured director of the competent local finance bureau, (y) copies of any modification (if any) to the asset liquidation plan since the date of filing of such business commencement notification affixed with a receipt stamp of the director of the competent local finance bureau, and (z) a valid and current asset liquidation plan (affixed with a receipt stamp of the director of the competent local finance bureau if it has been submitted to the competent local finance bureau).
(b) The Lender Parties shall be satisfied with any change to the corporate and legal structure of any Loan Party or any Subsidiary thereof occurring after December 31, 2017, including any changes to the terms and conditions of the charter and bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of any Loan Party occurring after December 31, 2017.
(c) The Lender Parties shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished.
(d) Before and after giving effect to the transactions contemplated by the Loan Documents, there shall have occurred no material adverse change in the business or financial condition of the Parent Guarantor and its Subsidiaries taken as a whole since December 31, 2017.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or Digital Realty – Yen Credit Agreement arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby.
(f) All material governmental and third party consents and approvals necessary in connection with the transactions contemplated by the Loan Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the Lender Parties) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lender Parties that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated by the Loan Documents.
(g) There exists no default or event of default under any of the Global Facility Documents on the part of the Operating Partnership or any Affiliate thereof.
(h) The Borrowers shall have paid all accrued fees of the Administrative Agent and the Lender Parties and that all required affidavitsreasonable, tax forms and filings pertaining to any applicable documentary stamp, intangible and mortgage recordation taxes have been executed and delivered by all appropriate parties and are in form suitable for filing with all applicable governmental authorities,
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (out‑of‑pocket expenses of the “Mortgage Policies”) in form and substance, with endorsements Administrative Agent (including zoning endorsements where available) the reasonable fees and in amounts (not to exceed $85,000,000 in the aggregate) acceptable expenses of counsel to the Administrative Agent, issued by title insurers acceptable subject to the Administrative Agent (it being acknowledged that First American Title Insurance Company is a title insurer acceptable to the Administrative Agent as terms of the Closing DateFee Letter), insuring the Mortgages to be valid first and subsisting Liens in favor of the Collateral Agent on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances (as defined in the Mortgages), and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) as the Administrative Agent may deem necessary or desirable,
(C) American Land Title Association/American Congress on Surveying and Mapping form surveys for which all necessary fees have been paid, dated no more than 45 days before the date of their delivery to the Collateral Agent, certified to the Administrative Agent, the Collateral Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other plottable dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent,
(D) zoning reports as to the properties described in the Mortgages, in form and substance reasonably acceptable to the Administrative Agent and from Planning and Zoning Resources Corp. or another professional firm reasonably acceptable to the Administrative Agent, (E) engineering, soils, seismic, environmental and other similar reports as to the properties described in the Mortgages, in form and substance and from professional firms reasonably acceptable to the Administrative Agent,.
Appears in 1 contract
Conditions Precedent to Initial Extension of Credit. The obligation obligations of each Lender the Lenders to make an Advance or of any Issuing Bank Loans to issue a Letter of Credit the Borrower on the occasion of the Initial Extension of Credit hereunder is DIP Closing Date are subject to the satisfaction or waiver in accordance with Section 9.08 of the following conditions precedent before or concurrently with the Initial Extension of Creditconditions:
(a) Each of the Loan Documents and other documentation relating to the Loans provided hereunder shall be in form and substance reasonably satisfactory to the Administrative Agent and duly executed and, where applicable, delivered by each of the Loan Parties and each Lender and other parties thereto.
(b) The Administrative Agent shall have received, in respect of each Loan Party:
(i) copies of each organizational or constitutive document (along with any amendments thereto) certified as of a recent date prior to the DIP Closing Date by the appropriate Governmental Authority or, with respect to any Dutch Loan Party, one or more board members authorized to represent such Dutch Loan Party;
(ii) certificate of the secretary or an assistant secretary or, with respect to any Dutch Loan Party, one or more board members authorized to represent such Dutch Loan Party, of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder;
(iii) resolutions of the board of directors (or similar governing body) of such Loan Party approving and authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party or by which it or its assets may be bound as of the DIP Closing Date, as well as the transactions contemplated hereunder and, in the case of the Debtors, the commencement of the Chapter 11 Cases, certified as of the DIP Closing Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment; and
(iv) a good standing certificate, where applicable, from the applicable Governmental Authority of such Loan Party’s jurisdiction of incorporation, organization or formation dated as of a recent date prior to the DIP Closing Date.
(c) The Chapter 11 Cases shall have been commenced by the Debtors, and the Administrative Agent shall be reasonably satisfied with (x) the form and substance of the First Day Orders (including the cash management order) sought by the Debtors and entered on or promptly following the DIP Closing Date and (y) the motion to approve the DIP Orders.
(d) The Administrative Agent shall have received on or before a signed copy of an order entered by the day of Bankruptcy Court no later than five (5) days after the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:
(i) A Note payable to the order of each Lender requesting the same.
(ii) A security agreement Petition Date in substantially the form of Exhibit G hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j)E, in each case as amended, the “Security Agreement”), duly executed by each Loan Party that owns Borrowing Base Assets, together with:
(A) acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents, covering the Collateral described therein,
(B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above and in such other jurisdictions specified by the Administrative Agent that name any Loan Party as debtor, together with copies of such other financing statements,
(C) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby,
(D) certificated Equity Interests in each direct and indirect Subsidiary that owns or leases a Borrowing Base Asset and stock powers and membership interest powers with respect thereto executed in blank, all in form and substance acceptable to the Administrative Agent,
(E) evidence of the insurance required by the terms of the Security Agreement,
(F) copies of the Assigned Agreements referred to in the Security Agreement, including, without limitation, each of the Hotel Management Agreements with respect to each Borrowing Base Asset and the Interstate Master Agreement, together with a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties,
(G) certified copies of each management agreement and franchise agreement, and all amendments thereto, entered into on or before the Closing Date with respect to each Hotel Asset comprising a Borrowing Base Asset,
(H) certified copies of all leases (including, without limitation, all leases with Affiliates) and Material Contracts relating to each Borrowing Base Asset,
(I) a subordination agreement, in form and substance satisfactory to the Administrative Agent, executed and delivered by the manager of each Hotel Asset comprising a Borrowing Base Asset,
(J) a franchisor comfort letter in form and substance satisfactory to the Administrative Agent, executed and delivered by each franchisor of each Hotel Asset comprising a Borrowing Base Asset, and
(K) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority Liens created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters, UCC termination statements, account control agreements and landlords’ and bailees’ waiver and consent agreements).
(iii) Deeds of trust, trust deeds and mortgages in substantially the form of Exhibit H hereto (together with each other deed of trust, trust deed and mortgage delivered pursuant to Section 5.01(j), in each case as amended, the “Mortgages”) and assignments of leases and rents in substantially the form of Exhibit J hereto (together with each other assignment of leases and rents delivered pursuant to Section 5.01(j), in each case as amended, the “Assignments of Leases”) (in each case with such changes as may which shall be required to account for local law matters and otherwise satisfactory in form and substance to the Administrative AgentAgent (the “Interim Order”) covering all Borrowing Base Assetsand confirmation that the Interim Order has been entered on the docket, duly executed which Interim Order (i) shall approve the Loan Documents and the initial DIP Budget and grant the Liens described in Section 5.12, (ii) shall authorize extensions of credit in the aggregate amount of up to (x) $350.0 million of term loans under this Agreement and under the Intercompany DIP Loan Agreement and (y) $250.0 million of asset based revolving loans under the ABL Credit Agreement, (iii) shall approve the payment by the appropriate Loan Party, together with:
(A) evidence that counterparts Debtors of all of the Mortgages fees and Assignments expenses that are required to be paid hereunder; (iv) shall authorize the use by the Loan Parties of Leases any collateral including cash collateral in which any Prepetition Secured Party or any Adequate Protection Party may have been duly executed, acknowledged an interest; (v) shall provide for Adequate Protection Payments and delivered on or before grant adequate protection claims and Liens to the day Prepetition Secured Parties as adequate protection of the Initial Extension Adequate Protection Parties’ interests in the Collateral from diminution in value of Credit and are in form suitable for filing their collateral resulting from the Loan Parties’ use, sale or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the collateral described therein in favor lease of the Collateral Agent for (including cash collateral), the benefit imposition of the Secured Parties automatic stay pursuant to section 362 of the Bankruptcy Code and that the Liens described in Section 5.12; (vi) shall authorize the repayment of all required affidavits, tax forms loans under the Prepetition Credit Agreement; (vii) shall be in full force and filings pertaining to any applicable documentary stamp, intangible effect; and mortgage recordation taxes (viii) shall not have been executed and delivered by all appropriate parties and are in form suitable for filing with all applicable governmental authorities,
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (vacated, reversed, or stayed, or, without the “Mortgage Policies”) in form and substance, with endorsements (including zoning endorsements where available) and in amounts (not to exceed $85,000,000 in the aggregate) acceptable to prior written consent of the Administrative Agent, issued by title insurers acceptable to modified or, amended; and the Administrative Agent (it being acknowledged that First American Title Insurance Company is a title insurer acceptable to Debtors are in compliance with the Administrative Agent as terms and conditions of the Closing Date), insuring the Mortgages Interim Order.
(e) All accrued fees required to be valid first and subsisting Liens in favor of the Collateral Agent on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances (as defined in the Mortgages), and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) as the Administrative Agent may deem necessary or desirable,
(C) American Land Title Association/American Congress on Surveying and Mapping form surveys for which all necessary fees have been paid, dated no more than 45 days before the date of their delivery to the Collateral Agent, certified paid to the Administrative Agent, the Collateral Agent Joint Lead Arrangers and the issuer Lenders as of the Mortgage Policies in a manner satisfactory DIP Closing Date shall have been paid and all reasonable and documented out-of-pocket fees and expenses (including reasonable and documented fees and expenses of outside counsel) required to be paid to the Administrative Agent by a land surveyor duly registered and licensed in on or before the States in which DIP Closing Date shall have been paid (including fees owed to the property described in such surveys is located and acceptable Lenders to be paid to the Administrative AgentAgent for the accounts of the Lenders).
(f) The Administrative Agent and its counsel shall have received a favorable written opinion of NautaDutilh New York P.C., showing all buildings and other improvementsDutch local counsel for the Loan Parties, any off-site improvementsdated as of the DIP Closing Date, the location of any easements, parking spaces, rights of way, building set-back lines and other plottable dimensional regulations and the absence of encroachments, either by addressing such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to matters as the Administrative Agent,
(D) zoning reports as to the properties described in the MortgagesAgent may reasonably request, in form and substance reasonably acceptable satisfactory to the Administrative Agent.
(g) Since December 31, 2017, there has been no event or occurrence that has had a Material Adverse Effect.
(h) There shall not exist any action, suit, investigation, litigation or proceeding pending or (to the knowledge of the Loan Parties) threatened in any court or before any arbitrator or governmental instrumentality that could reasonably be expected to result in a Material Adverse Effect.
(i) The Administrative Agent shall have received and from Planning be reasonably satisfied with the DIP Budget for the first thirteen week period after the Petition Date.
(j) All necessary governmental and Zoning Resources Corp. or another professional firm third party consents and approvals necessary in connection with the Credit Facilities and the Intercompany DIP Loan Agreement and the transactions contemplated thereunder shall have been obtained (without the imposition of any adverse conditions that are not reasonably acceptable to the Administrative Agent, ) and shall remain in effect; and no law or regulation (Eother than the Bankruptcy Code) engineering, soils, seismic, environmental and other similar reports as to the properties described in the Mortgages, in form and substance and from professional firms reasonably acceptable shall be applicable to the Administrative Agent that prevents the establishment of the Credit Facilities and the Intercompany DIP Loan Agreement or the consummation of the transactions contemplated thereunder.
(k) Each Lender who has requested the same at least ten Business Days prior to the DIP Closing Date shall have received, at least two Business Days prior to the DIP Closing Date (or such later date as agreed by the Lead Arrangers), “know your customer” and similar information. The Administrative Agent shall have received (i) at least two Business Days prior to the DIP Closing Date (or such later date as agreed by the Administrative Agent,) all documentation and other information about the Borrower as required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations that has been reasonably requested by the Administrative Agent in writing prior to the DIP Closing Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification.
(l) Evidence that, such other documents, instruments or actions deemed necessary or advisable by the Administrative Agent to perfect and protect the Liens and security interests created or purported to be created with respect to the Debtors, pursuant to the Interim Order and the Guarantee Agreement, and perfected pursuant to applicable Requirements of Law, in each case, shall have been duly delivered or completed, including, without limitation, the delivery of Uniform Commercial Code financing statements in proper form for filing for all applicable jurisdictions of the Loan Parties and provision having been made for the payment of any fees or taxes required in connection with the filing of such documents, instruments or financing statements.
(m) There shall not occur as a result of, and after giving effect to, the initial Credit Event, a default (or any event which with the giving of notice or lapse of time or both would be a default) under any debt instruments and other material agreements of any Subsidiary of Hexion (other than any Loan Party) which could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(n) Concurrently with the initial extension of credit hereunder, the ABL Credit Agreement shall have become effective and the Prepetition Credit Agreement obligations paid.
Appears in 1 contract
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make an Advance or of any Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes, as to which one original of each shall be sufficient) in sufficient copies for each Lender Party:
(i) A Note duly executed by the Borrower and payable to the order of each Lender requesting that has requested the same.
(ii) A security agreement in substantially the form of Exhibit G hereto [Intentionally Omitted].
(together with iii) As to each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, the “Security Agreement”), duly executed by each Loan Party that owns Borrowing Base Assets, together withUnencumbered Asset:
(A) acknowledgment [Intentionally Omitted]; and
(B) evidence satisfactory to the Administrative Agent that the applicable owner or lessee, as applicable, of such Unencumbered Asset shall be in compliance with the requirements of Section 5.02(p).
(iv) This Agreement duly executed by the Loan Parties and the other parties hereto.
(v) Certified copies of proper financing statementsthe resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party (the “Closing Authorizing Resolution”), and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party.
(vi) A copy of a certificate of the Secretary of State (or equivalent authority) of the jurisdiction of incorporation, organization or formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near (but prior to) the Closing Date, certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a true and correct copy of the charter, certificate of limited partnership, limited liability company agreement or other organizational document of such Loan Party, general partner or managing member, as the case may be, and each amendment thereto on file in such Secretary’s office, (B) that such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party, general partner or managing member, as the case may be, on file in such Secretary’s office, and (C) such Loan Party, general partner or managing member, as the case may be, is duly incorporated, organized or formed and in good standing or presently subsisting under the laws of the jurisdiction of its incorporation, organization or formation.
(vii) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or any general partner or managing member of a Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably be expected to result in a Material Adverse Effect, dated reasonably near (but prior to) the Closing Date, stating, with respect to each such Loan Party, general partner or managing member, that such Loan Party, general partner or managing member, as the case may be, is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate.
(viii) A certificate of each Loan Party and of each general partner or managing member (if any) of each Loan Party, signed on behalf of such Loan Party, general partner or before managing member, as applicable, by its President, a Vice President, Executive Chairman or Chief Manager and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the day Closing Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit under Credit), certifying as to (A) the Uniform Commercial Code absence of all jurisdictions that any amendments to the Administrative Agent may deem necessary constitutive documents of such Loan Party, general partner or desirable managing member, as applicable, since the date of the certificate referred to in order to perfect and protect the first priority liens and security interests created under the Collateral DocumentsSection 3.01(a)(vi), covering the Collateral described therein,
(B) completed requests for informationa true and correct copy of the bylaws, dated operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, as applicable, as in effect on or before the date on which the resolutions referred to in Section 3.01(a)(v) were adopted and on the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above and in such other jurisdictions specified by the Administrative Agent that name any Loan Party as debtor, together with copies of such other financing statements,
(C) evidence the due incorporation, organization or formation and good standing or valid existence of such Loan Party, general partner or managing member, as applicable, as a corporation, limited liability company or partnership organized under the laws of the completion jurisdiction of all other recordings its incorporation, organization or formation and filings the absence of any proceeding for the dissolution or with respect to the Security Agreement that the Administrative Agent may deem necessary liquidation of such Loan Party, general partner or desirable in order to perfect and protect the Liens created thereby,
managing member, as applicable, (D) certificated Equity Interests in each direct and indirect Subsidiary that owns or leases a Borrowing Base Asset and stock powers and membership interest powers with respect thereto executed in blank, all in form and substance acceptable to the Administrative Agent,
(E) evidence truth of the insurance required by representations and warranties contained in the terms Loan Documents as though made on and as of the Security Agreement,
(F) copies of the Assigned Agreements referred to in the Security Agreement, including, without limitation, each of the Hotel Management Agreements with respect to each Borrowing Base Asset and the Interstate Master Agreement, together with a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties,
(G) certified copies of each management agreement and franchise agreement, and all amendments thereto, entered into on or before the Closing Date with respect to each Hotel Asset comprising a Borrowing Base Asset,
(H) certified copies of all leases (including, without limitation, all leases with Affiliates) and Material Contracts relating to each Borrowing Base Asset,
(I) a subordination agreement, in form and substance satisfactory to the Administrative Agent, executed and delivered by the manager of each Hotel Asset comprising a Borrowing Base Asset,
(J) a franchisor comfort letter in form and substance satisfactory to the Administrative Agent, executed and delivered by each franchisor of each Hotel Asset comprising a Borrowing Base Asset, and
(K) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority Liens created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters, UCC termination statements, account control agreements and landlords’ and bailees’ waiver and consent agreements).
(iii) Deeds of trust, trust deeds and mortgages in substantially the form of Exhibit H hereto (together with each other deed of trust, trust deed and mortgage delivered pursuant to Section 5.01(j), in each case as amended, the “Mortgages”) and assignments of leases and rents in substantially the form of Exhibit J hereto (together with each other assignment of leases and rents delivered pursuant to Section 5.01(j), in each case as amended, the “Assignments of Leases”) (in each case with such changes as may be required to account for local law matters and otherwise satisfactory in form and substance to the Administrative Agent) covering all Borrowing Base Assets, duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages and Assignments of Leases have been duly executed, acknowledged and delivered on or before the day date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.
(ix) A certificate of the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan Party, or of the general partner or managing member of such Loan Party, authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(x) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, historical operating statements (if any), audited annual financial statements for the year ending December 31, 2016 of the Parent Guarantor, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available and for the three months then ended and financial projections for the Parent Guarantor’s consolidated operations.
(xi) [Intentionally Omitted.]
(xii) An opinion of Kleinberg, Kaplan, Xxxxx & Xxxxx, P.C., New York counsel for the Loan Parties, with respect to the matters (and in form suitable for filing or recording substantially the form) set forth in all filing or recording offices that Exhibit F-1 hereto and as to such other matters as any Lender Party through the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the collateral described therein in favor reasonably request.
(xiii) An opinion of the Collateral Agent local counsel for the benefit Loan Parties (A) from Xxxxxxx LLP in substantially the form of the Secured Parties and that all required affidavitsExhibit F-2 hereto, tax forms and filings pertaining to any applicable documentary stamp, intangible and mortgage recordation taxes have been executed and delivered by all appropriate parties and are in form suitable for filing with all applicable governmental authorities,
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies from Xxxxx, Xxxxx & Xxxxxx, LLP in substantially the form of Exhibit F-3 hereto, and (C) a Delaware opinion in the form of Exhibit F-4 hereto, in each case covering such other matters as any Lender Party through the Administrative Agent may reasonably request.
(xiv) A Notice of Borrowing relating to the Initial Extension of Credit and dated and delivered not less than three (3) Business Days prior to the date of the Initial Extension of Credit.
(xv) A certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, stating that after giving effect to the Initial Extension of Credit the Parent Guarantor shall be in compliance with the covenants contained in Section 5.04, together with supporting information in form satisfactory to the Administrative Agent showing the computations used in determining compliance with such covenants.
(b) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and its Subsidiaries, including the terms and conditions of the charter and bylaws, operating agreement, partnership agreement or other governing document of each of them.
(c) The Lender Parties shall be satisfied that all Existing Debt shall be on terms and conditions reasonably satisfactory to the Lender Parties.
(d) Before and after giving effect to the transactions contemplated by the Loan Documents, there shall have occurred no material adverse change in the business, assets, properties, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Loan Parties since December 31, 2016.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to result in a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Mortgage PoliciesMaterial Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby, and there shall have been no material adverse change in form the status, or financial effect on any Loan Party or any of its Subsidiaries, of the Material Litigation from that described on Schedule 4.01(f) hereto.
(f) All governmental and substance, third party consents and approvals necessary in connection with endorsements the transactions contemplated by the Loan Documents shall have been obtained (including zoning endorsements where availablewithout the imposition of any conditions that are not acceptable to the Lender Parties) and shall remain in amounts (not to exceed $85,000,000 effect, and no law or regulation shall be applicable in the aggregatereasonable judgment of the Lender Parties that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated by the Loan Documents.
(g) acceptable Each Subsidiary Guarantor shall have complied with the requirements of Section 5.02(p) and provided evidence of such compliance satisfactory to the Administrative Agent.
(h) The Borrower shall have paid all accrued fees of the Administrative Agent and the Lender Parties and all reasonable, issued out-of-pocket expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent).
(i) The Borrower and each Guarantor shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by title insurers acceptable the Administrative Agent or any Lender to comply with its “know your customer” requirements and to confirm compliance with all applicable Sanctions, Anti-Corruption Laws, the Trading with the Enemy Act and the Patriot Act, and (ii) if the Borrower qualifies as a “legal entity customer” within the meaning of the Beneficial Ownership Regulation, the Borrower shall have provided to the Administrative Agent (it being acknowledged that First American Title Insurance Company is a title insurer acceptable to for further delivery by the Administrative Agent as of to the Lenders in accordance with its customary practice) a Beneficial Ownership Certification for the Borrower; in each case delivered at least five Business Days prior to the Closing Date), insuring the Mortgages to be valid first and subsisting Liens in favor of the Collateral Agent on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances (as defined in the Mortgages), and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) as the Administrative Agent may deem necessary or desirable,
(C) American Land Title Association/American Congress on Surveying and Mapping form surveys for which all necessary fees have been paid, dated no more than 45 days before the date of their delivery to the Collateral Agent, certified to the Administrative Agent, the Collateral Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other plottable dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent,
(D) zoning reports as to the properties described in the Mortgages, in form and substance reasonably acceptable to the Administrative Agent and from Planning and Zoning Resources Corp. or another professional firm reasonably acceptable to the Administrative Agent, (E) engineering, soils, seismic, environmental and other similar reports as to the properties described in the Mortgages, in form and substance and from professional firms reasonably acceptable to the Administrative Agent,.
Appears in 1 contract
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make an Advance or of any Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes, as to which one original of each shall be sufficient) in sufficient copies for each Lender Party:
(i) A Note duly executed by the Borrower and payable to the order of each Lender requesting that has requested the same.
(ii) A security agreement in substantially the form of Exhibit G hereto (together Completed requests for information dated a recent date, including UCC, judgment, tax, litigation and bankruptcy searches with respect to each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j)applicable Loan Party, and, in each the case as amended, the “Security Agreement”), duly executed by each Loan Party that owns Borrowing Base Assets, together with:
(A) acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents, covering the Collateral described therein,
(B) completed requests for information, dated on or before the date of the Initial Extension of CreditUCC searches, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above and in such other jurisdictions specified by the Administrative Agent that name any Loan Party as debtor, together with copies of such other financing statements,.
(Ciii) evidence This Agreement, duly executed by the Loan Parties and the other parties hereto.
(iv) Certified copies of the completion resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party, and of all documents evidencing other recordings necessary corporate action and filings of or governmental and other third party approvals and consents, if any, with respect to the Security Agreement transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party.
(v) A copy of a certificate of the Secretary of State (or equivalent authority) of the jurisdiction of incorporation, organization or formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near the Closing Date, certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a true and correct copy of the charter, certificate of limited partnership, limited liability company agreement or other organizational document of such Loan Party, general partner or managing member, as the case may be, and each amendment thereto on file in such Secretary’s office, (B) that (1) such amendments are the Administrative Agent only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party, general partner or managing member, as the case may deem necessary be, on file in such Secretary’s office, (2) such Loan Party, general partner or desirable managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) such Loan Party, general partner or managing member, as the case may be, is duly incorporated, organized or formed and in order good standing or presently subsisting under the laws of the jurisdiction of its incorporation, organization or formation.
(vi) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party owns or leases property or in which the conduct of its business requires it to perfect qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably be expected to result in a Material Adverse Effect, dated reasonably near (but prior to) the Closing Date, stating that such Loan Party is duly qualified and protect in good standing as a foreign corporation, limited partnership or limited liability company in such State and has, if applicable, filed all annual reports required to be filed to the Liens created thereby,date of such certificate.
(vii) A certificate of each Loan Party and of each general partner or managing member (if any) of each Loan Party, signed on behalf of such Loan Party, general partner or managing member, as applicable, by its Secretary, Assistant Secretary or Responsible Officer (or those of its general partner or managing member, if applicable) dated the Closing Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the constitutive documents of such Loan Party, general partner or managing member, as applicable, since the date of the certificate referred to in Section 3.01(a)(v) (or including a copy of such amendment), (B) a true and correct copy of the bylaws, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, as applicable, as in effect on the date on which the resolutions referred to in Section 3.01(a)(iv) were adopted and on the date of the Initial Extension of Credit, (C) the due incorporation, organization or formation and good standing or valid existence of such Loan Party, general partner or managing member, as applicable, as a corporation, limited liability company or partnership organized under the laws of the jurisdiction of its incorporation, organization or formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party, general partner or managing member, as applicable, (D) certificated Equity Interests the truth of the representations and warranties contained in each direct the Loan Documents in all material respects (unless qualified as to materiality or Material Adverse Effect, in which case such representations and indirect Subsidiary that owns or leases a Borrowing Base Asset warranties shall be true and stock powers correct in all respects) as though made on and membership interest powers with respect thereto executed in blank, all in form and substance acceptable as of the date of the Initial Extension of Credit (except to the Administrative Agent,
extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date) and (E) evidence the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.
(viii) A certificate of the insurance required by the terms Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the Security Agreement,general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan Party, or of the general partner or managing member of such Loan Party, authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(Fix) copies of Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Assigned Agreements referred to in the Security AgreementLender Parties shall have reasonably requested, including, without limitation, each information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, historical operating statements (if any), audited annual financial statements for the year ending December 31, 2017 of the Hotel Management Agreements with respect to each Borrowing Base Asset and Parent Guarantor, interim financial statements dated the Interstate Master Agreement, together with a consent to such assignmentend of the most recent fiscal quarter for which financial statements are available (or, in substantially the form of Exhibit B to event the Security Agreement, duly executed by each party to Lender Parties’ due diligence review reveals material changes since such Assigned Agreements other than the Loan Parties,
(G) certified copies of each management agreement and franchise agreement, and all amendments thereto, entered into on or before the Closing Date with respect to each Hotel Asset comprising a Borrowing Base Asset,
(H) certified copies of all leases (including, without limitation, all leases with Affiliates) and Material Contracts relating to each Borrowing Base Asset,
(I) a subordination agreement, in form and substance satisfactory to the Administrative Agent, executed and delivered by the manager of each Hotel Asset comprising a Borrowing Base Asset,
(J) a franchisor comfort letter in form and substance satisfactory to the Administrative Agent, executed and delivered by each franchisor of each Hotel Asset comprising a Borrowing Base Asset, and
(K) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority Liens created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters, UCC termination financial statements, account control agreements and landlords’ and bailees’ waiver and consent agreements).
(iii) Deeds as of trust, trust deeds and mortgages in substantially the form a later date within 45 days of Exhibit H hereto (together with each other deed of trust, trust deed and mortgage delivered pursuant to Section 5.01(j), in each case as amended, the “Mortgages”) and assignments of leases and rents in substantially the form of Exhibit J hereto (together with each other assignment of leases and rents delivered pursuant to Section 5.01(j), in each case as amended, the “Assignments of Leases”) (in each case with such changes as may be required to account for local law matters and otherwise satisfactory in form and substance to the Administrative Agent) covering all Borrowing Base Assets, duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages and Assignments of Leases have been duly executed, acknowledged and delivered on or before the day of the Initial Extension of Credit Credit) and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the collateral described therein in favor of the Collateral Agent financial projections for the benefit of the Secured Parties and Parent Guarantor’s consolidated operations.
(x) Evidence that all insurance required affidavits, tax forms and filings pertaining to any applicable documentary stamp, intangible and mortgage recordation taxes have been executed and delivered by all appropriate parties and are in form suitable for filing with all applicable governmental authorities,
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements (including zoning endorsements where available) and in amounts (not to exceed $85,000,000 in the aggregate) acceptable to the Administrative Agent, issued by title insurers acceptable to the Administrative Agent (it being acknowledged that First American Title Insurance Company is a title insurer acceptable to the Administrative Agent as of the Closing Date), insuring the Mortgages to be valid first and subsisting Liens in favor of the Collateral Agent on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances (as defined in the Mortgages), and providing for such other affirmative insurance (including endorsements for future advances under maintained pursuant to the Loan Documents has been obtained and for mechanics’ and materialmen’s Liens) as the Administrative Agent may deem necessary or desirable,is in effect.
(Cxi) American Land Title Association/American Congress on Surveying and Mapping form surveys An opinion of Xxxxxxx Procter LLP, counsel for which all necessary fees have been paid, dated no more than 45 days before the date of their delivery to the Collateral Agent, certified to the Administrative Agent, the Collateral Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other plottable dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent,
(D) zoning reports as to the properties described in the MortgagesLoan Parties, in form and substance reasonably acceptable satisfactory to the Administrative Agent.
(xii) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit and dated and delivered to the Administrative Agent at least three Business Days prior to the Closing Date.
(xiii) [intentionally omitted].
(xiv) A certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, stating that after giving effect to the Initial Extension of Credit, the Parent Guarantor shall be in compliance with the covenants contained in Section 5.04, together with supporting information in form reasonably satisfactory to the Administrative Agent showing the computations used in determining compliance with such covenants.
(A) The documentation and other information reasonably requested by any Lender at least ten Business Days prior to the Closing Date in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Patriot Act, and (B) if the Borrower qualifies as a “legal entity customer” within the meaning of the Beneficial Ownership Regulation, a Beneficial Ownership Certification for the Borrower; in each case delivered at least five Business Days prior to the Closing Date.
(b) After giving effect to the transactions contemplated by the Loan Documents, there shall have occurred no Material Adverse Change since December 31, 2017.
(c) There shall exist no action, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to result in a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Material Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby, and there shall have been no material adverse change in the status, or financial effect on any Loan Party or any of its Subsidiaries, of the Material Litigation from Planning that described on Schedule 4.01(f) hereto.
(d) All material governmental and Zoning Resources Corp. third party consents and approvals necessary in connection with the transactions contemplated by the Loan Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the Lender Parties) and shall remain in effect, and no law or another professional firm reasonably acceptable regulation shall be applicable in the reasonable judgment of the Lender Parties that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated by the Loan Documents.
(e) The Borrower shall have paid all accrued fees of the Administrative Agent and the Lender Parties and all reasonable, out‑of‑pocket expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent, (E) engineering, soils, seismic, environmental and other similar reports as to the properties described in the Mortgages, in form and substance and from professional firms reasonably acceptable to the Administrative Agent,).
Appears in 1 contract
Samples: Credit Agreement (Easterly Government Properties, Inc.)
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make an Advance or of any Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notesitems specified in clause (i) below) in sufficient copies for each Lender PartyLender:
(i) A Note Notes payable to the order of each Lender requesting the same.
(ii) A security agreement in substantially the form of Exhibit G hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j)The Escrow Agreement, in each case as amended, the “Security Agreement”), duly executed by each Loan Party that owns Borrowing Base Assets, together with:
(A) acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents, covering the Collateral described therein,
(B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above and in such other jurisdictions specified by the Administrative Agent that name any Loan Party as debtor, together with copies of such other financing statements,
(C) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby,
(D) certificated Equity Interests in each direct and indirect Subsidiary that owns or leases a Borrowing Base Asset and stock powers and membership interest powers with respect thereto executed in blank, all in form and substance acceptable to the Administrative Escrow Agent,
(E) evidence of the insurance required by the terms of the Security Agreement,
(F) copies of the Assigned Agreements referred to in the Security Agreement, including, without limitation, each of the Hotel Management Agreements with respect to each Borrowing Base Asset and the Interstate Master Agreement, together with a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties,
(G) certified copies , each of each management agreement the Lenders and franchise agreement, and all amendments thereto, entered into on or before the Closing Date with respect to each Hotel Asset comprising a Borrowing Base Asset,
(H) certified copies of all leases (including, without limitation, all leases with Affiliates) and Material Contracts relating to each Borrowing Base Asset,
(I) a subordination agreement, in form and substance satisfactory to the Administrative Agent, executed and delivered by the manager of each Hotel Asset comprising a Borrowing Base Asset,
(J) a franchisor comfort letter in form and substance satisfactory to the Administrative Agent, executed and delivered by each franchisor of each Hotel Asset comprising a Borrowing Base Asset, and
(K) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority Liens created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters, UCC termination statements, account control agreements and landlords’ and bailees’ waiver and consent agreements).
(iii) Deeds Certified copies of trust, trust deeds and mortgages in substantially the form resolutions of Exhibit H hereto the Board of Directors (together with each other deed of trust, trust deed and mortgage delivered pursuant to Section 5.01(jor equivalent body), in general partner or managing member, as applicable, of each case as amended, Loan Party and of each general partner or managing member (if any) of each Loan Party approving the “Mortgages”) transactions contemplated by the Loan Documents and assignments of leases and rents in substantially each Loan Document to which it is or is to be a party (solely to the form of Exhibit J hereto (together with each other assignment of leases and rents delivered pursuant to Section 5.01(jextent required under such Loan Party’s applicable governing documents), in each case as amended, the “Assignments of Leases”) (in each case with such changes as may be required to account for local law matters and otherwise satisfactory in form and substance to the Administrative Agent) covering all Borrowing Base Assets, duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages and Assignments of Leases have been duly executed, acknowledged and delivered on or before the day of the Initial Extension of Credit and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the collateral described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all required affidavits, tax forms and filings pertaining to any applicable documentary stamp, intangible and mortgage recordation taxes have been executed and delivered by all appropriate parties and are in form suitable for filing with all applicable governmental authorities,
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements (including zoning endorsements where available) and in amounts (not to exceed $85,000,000 in the aggregate) acceptable to the Administrative Agent, issued by title insurers acceptable to the Administrative Agent (it being acknowledged that First American Title Insurance Company is a title insurer acceptable to the Administrative Agent as of the Closing Date), insuring the Mortgages to be valid first and subsisting Liens in favor of the Collateral Agent on the property described therein, free and clear of all defects documents evidencing other necessary corporate action and governmental and other third party approvals and consents (including, but not limited toin relation to a Dutch entity, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances any action required to comply with the Dutch Works Councils Act (as defined in the MortgagesWet op de ondernemingsraden)), and providing for such other affirmative insurance (including endorsements for future advances if any, with respect to the transactions under the Loan Documents and each Loan Document to which it is or is to be a party.
(iv) A copy of a certificate of the Secretary of State (or equivalent authority (if any)) of the jurisdiction of incorporation, organization or formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near the Closing Date, certifying, if and to the extent such certification is generally available for mechanics’ and materialmen’s Liensentities of the type of such Loan Party, (A) as to a true and complete copy of the Administrative Agent charter, certificate of limited partnership, limited liability company agreement or other organizational document of such Loan Party, general partner or managing member, as the case may deem necessary be, and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or desirable,
other organizational document, as applicable, of such Loan Party, general partner or managing member, as the case may be, on file in such Secretary’s office and (2) to the extent available, such Loan Party, general partner or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) American Land Title Association/American Congress on Surveying such Loan Party, general partner or managing member, as the case may be, is duly incorporated, organized or formed and Mapping form surveys for which all necessary fees have been paid, dated no more than 45 days before in good standing (if a concept of good standing exists under the date of their delivery to the Collateral Agent, certified to the Administrative Agent, the Collateral Agent and the issuer laws of the Mortgage Policies in a manner satisfactory to jurisdiction of the Administrative Agent by a land surveyor duly registered and licensed in incorporation, organization or formation of such Loan Party) or presently subsisting under the States in which laws of the property described in such surveys is located and acceptable to the Administrative Agentjurisdiction of its incorporation, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other plottable dimensional regulations and the absence of encroachments, either by such improvements organization or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent,
(D) zoning reports as to the properties described in the Mortgages, in form and substance reasonably acceptable to the Administrative Agent and from Planning and Zoning Resources Corp. or another professional firm reasonably acceptable to the Administrative Agent, (E) engineering, soils, seismic, environmental and other similar reports as to the properties described in the Mortgages, in form and substance and from professional firms reasonably acceptable to the Administrative Agent,formation.
Appears in 1 contract
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make an Advance or of any Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes, as to which one original of each shall be sufficient) in sufficient copies for each Lender Party:
(i) A Note duly executed by the Borrower and payable to the order of each Lender requesting that has requested the same.
(ii) A security agreement in substantially the form of Exhibit G hereto [Intentionally Omitted].
(together with iii) As to each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, the “Security Agreement”), duly executed by each Loan Party that owns Borrowing Base Assets, together withUnencumbered Asset:
(A) acknowledgment [Intentionally Omitted]; and
(B) evidence satisfactory to the Administrative Agent that the applicable owner or lessee, as applicable, of such Unencumbered Asset shall be in compliance with the requirements of Section 5.02(p).
(iv) This Agreement duly executed by the Loan Parties and the other parties hereto.
(v) Certified copies of proper financing statementsthe resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party (the “Closing Authorizing Resolution”), and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party.
(vi) A copy of a certificate of the Secretary of State (or equivalent authority) of the jurisdiction of incorporation, organization or formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near (but prior to) the Closing Date, certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a true and correct copy of the charter, certificate of limited partnership, limited liability company agreement or other organizational document of such Loan Party, general partner or managing member, as the case may be, and each amendment thereto on file in such Secretary’s office, (B) that such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party, general partner or managing member, as the case may be, on file in such Secretary’s office, and (C) such Loan Party, general partner or managing member, as the case may be, is duly incorporated, organized or formed and in good standing or presently subsisting under the laws of the jurisdiction of its incorporation, organization or formation.
(vii) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or any general partner or managing member of a Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably be expected to result in a Material Adverse Effect, dated reasonably near (but prior to) the Closing Date, stating, with respect to each such Loan Party, general partner or managing member, that such Loan Party, general partner or managing member, as the case may be, is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate.
(viii) A certificate of each Loan Party and of each general partner or managing member (if any) of each Loan Party, signed on behalf of such Loan Party, general partner or before managing member, as applicable, by its President, a Vice President, Executive Chairman or Chief Manager and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the day Closing Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit under Credit), certifying as to (A) the Uniform Commercial Code absence of all jurisdictions that any amendments to the Administrative Agent may deem necessary constitutive documents of such Loan Party, general partner or desirable managing member, as applicable, since the date of the certificate referred to in order to perfect and protect the first priority liens and security interests created under the Collateral DocumentsSection 3.01(a)(vi), covering the Collateral described therein,
(B) completed requests for informationa true and correct copy of the bylaws, dated operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, as applicable, as in effect on or before the date on which the resolutions referred to in Section 3.01(a)(v) were adopted and on the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above and in such other jurisdictions specified by the Administrative Agent that name any Loan Party as debtor, together with copies of such other financing statements,
(C) evidence the due incorporation, organization or formation and good standing or valid existence of such Loan Party, general partner or managing member, as applicable, as a corporation, limited liability company or partnership organized under the laws of the completion jurisdiction of all other recordings its incorporation, organization or formation and filings the absence of any proceeding for the dissolution or with respect to the Security Agreement that the Administrative Agent may deem necessary liquidation of such Loan Party, general partner or desirable in order to perfect and protect the Liens created thereby,
managing member, as applicable, (D) certificated Equity Interests in each direct and indirect Subsidiary that owns or leases a Borrowing Base Asset and stock powers and membership interest powers with respect thereto executed in blank, all in form and substance acceptable to the Administrative Agent,
(E) evidence truth of the insurance required by representations and warranties contained in the terms Loan Documents as though made on and as of the Security Agreement,
(F) copies of the Assigned Agreements referred to in the Security Agreement, including, without limitation, each of the Hotel Management Agreements with respect to each Borrowing Base Asset and the Interstate Master Agreement, together with a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties,
(G) certified copies of each management agreement and franchise agreement, and all amendments thereto, entered into on or before the Closing Date with respect to each Hotel Asset comprising a Borrowing Base Asset,
(H) certified copies of all leases (including, without limitation, all leases with Affiliates) and Material Contracts relating to each Borrowing Base Asset,
(I) a subordination agreement, in form and substance satisfactory to the Administrative Agent, executed and delivered by the manager of each Hotel Asset comprising a Borrowing Base Asset,
(J) a franchisor comfort letter in form and substance satisfactory to the Administrative Agent, executed and delivered by each franchisor of each Hotel Asset comprising a Borrowing Base Asset, and
(K) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority Liens created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters, UCC termination statements, account control agreements and landlords’ and bailees’ waiver and consent agreements).
(iii) Deeds of trust, trust deeds and mortgages in substantially the form of Exhibit H hereto (together with each other deed of trust, trust deed and mortgage delivered pursuant to Section 5.01(j), in each case as amended, the “Mortgages”) and assignments of leases and rents in substantially the form of Exhibit J hereto (together with each other assignment of leases and rents delivered pursuant to Section 5.01(j), in each case as amended, the “Assignments of Leases”) (in each case with such changes as may be required to account for local law matters and otherwise satisfactory in form and substance to the Administrative Agent) covering all Borrowing Base Assets, duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages and Assignments of Leases have been duly executed, acknowledged and delivered on or before the day date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.
(ix) A certificate of the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan Party, or of the general partner or managing member of such Loan Party, authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(x) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, historical operating statements (if any), audited annual financial statements for the year ending December 31, 2016 of the Parent Guarantor, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available and for the three months then ended and financial projections for the Parent Guarantor’s consolidated operations.
(xi) [Intentionally Omitted.]
(xii) An opinion of Kleinberg, Kaplan, Xxxxx & Xxxxx, P.C., New York counsel for the Loan Parties, with respect to the matters (and in form suitable for filing or recording substantially the form) set forth in all filing or recording offices that Exhibit F-1 hereto and as to such other matters as any Lender Party through the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the collateral described therein in favor reasonably request.
(xiii) An opinion of the Collateral Agent local counsel for the benefit Loan Parties (A) from Xxxxxxx LLP in substantially the form of the Secured Parties and that all required affidavitsExhibit F-2 hereto, tax forms and filings pertaining to any applicable documentary stamp, intangible and mortgage recordation taxes have been executed and delivered by all appropriate parties and are in form suitable for filing with all applicable governmental authorities,
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies from Xxxxx, Xxxxx & Xxxxxx, LLP in substantially the form of Exhibit F-3 hereto, (C) from Xxxxxx Xxxxxx Xxxxxxx LLP in substantially the “Mortgage Policies”form of Exhibit F-4 hereto, and (D) in form and substance, with endorsements (including zoning endorsements where available) and in amounts (not to exceed $85,000,000 a Delaware opinion in the aggregate) acceptable to the Administrative Agentform of Exhibit F-5 hereto, issued by title insurers acceptable to the Administrative Agent (it being acknowledged that First American Title Insurance Company is a title insurer acceptable to the Administrative Agent as of the Closing Date), insuring the Mortgages to be valid first and subsisting Liens in favor of the Collateral Agent on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances (as defined in the Mortgages), and providing for each case covering such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) matters as any Lender Party through the Administrative Agent may deem necessary or desirable,reasonably request.
(Cxiv) American Land Title Association/American Congress on Surveying A Notice of Borrowing relating to the Initial Extension of Credit and Mapping form surveys for which all necessary fees have been paid, dated no more and delivered not less than 45 days before three (3) Business Days prior to the date of their delivery the Initial Extension of Credit.
(xv) A certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, stating that after giving effect to the Collateral AgentInitial Extension of Credit the Parent Guarantor shall be in compliance with the covenants contained in Section 5.04, certified to the Administrative Agent, the Collateral Agent and the issuer of the Mortgage Policies together with supporting information in a manner form satisfactory to the Administrative Agent showing the computations used in determining compliance with such covenants.
(b) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and its Subsidiaries, including the terms and conditions of the charter and bylaws, operating agreement, partnership agreement or other governing document of each of them.
(c) The Lender Parties shall be satisfied that all Existing Debt shall be on terms and conditions reasonably satisfactory to the Lender Parties.
(d) Before and after giving effect to the transactions contemplated by a land surveyor duly registered and licensed the Loan Documents, there shall have occurred no material adverse change in the States business, assets, properties, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Loan Parties since December 31, 2016.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to result in which a Material Adverse Effect other than the property matters described on Schedule 4.01(f) hereto (the “Material Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby, and there shall have been no material adverse change in the status, or financial effect on any Loan Party or any of its Subsidiaries, of the Material Litigation from that described on Schedule 4.01(f) hereto.
(f) All governmental and third party consents and approvals necessary in connection with the transactions contemplated by the Loan Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the Lender Parties) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lender Parties that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated by the Loan Documents.
(g) Each Subsidiary Guarantor shall have complied with the requirements of Section 5.02(p) and provided evidence of such surveys is located and acceptable compliance satisfactory to the Administrative Agent, showing .
(h) The Borrower shall have paid all buildings and other improvements, any off-site improvements, accrued fees of the location of any easements, parking spaces, rights of way, building set-back lines and other plottable dimensional regulations Administrative Agent and the absence Lender Parties and all reasonable, out-of-pocket expenses of encroachments, either by such improvements or on to such property, the Administrative Agent (including the reasonable fees and other defects, other than encroachments and other defects acceptable expenses of counsel to the Administrative Agent,
(D) zoning reports as to the properties described in the Mortgages, in form and substance reasonably acceptable to the Administrative Agent and from Planning and Zoning Resources Corp. or another professional firm reasonably acceptable to the Administrative Agent, (E) engineering, soils, seismic, environmental and other similar reports as to the properties described in the Mortgages, in form and substance and from professional firms reasonably acceptable to the Administrative Agent,).
Appears in 1 contract
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make an Advance or of any Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes, as to which one original of each shall be sufficient) in sufficient copies for each Lender Party:
(i) A Note duly executed by the Borrower and payable to the order of each Lender requesting that has requested the same.
(ii) A security agreement in substantially the form of Exhibit G hereto [Intentionally Omitted].
(together with iii) As to each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, the “Security Agreement”), duly executed by each Loan Party that owns Borrowing Base Assets, together withUnencumbered Asset:
(A) acknowledgment [Intentionally Omitted]; and
(B) evidence satisfactory to the Administrative Agent that the applicable owner or lessee, as applicable, of such Unencumbered Asset shall be in compliance with the requirements of Section 5.02(p).
(iv) This Agreement duly executed by the Loan Parties and the other parties hereto.
(v) Certified copies of proper financing statementsthe resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party (the “Closing Authorizing Resolution”), and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party.
(vi) A copy of a certificate of the Secretary of State (or equivalent authority) of the jurisdiction of incorporation, organization or formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near (but prior to) the Closing Date, certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a true and correct copy of the charter, certificate of limited partnership, limited liability company agreement or other organizational document of such Loan Party, general partner or managing member, as the case may be, and each amendment thereto on file in such Secretary’s office, (B) that such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party, general partner or managing member, as the case may be, on file in such Secretary’s office, and (C) such Loan Party, general partner or managing member, as the case may be, is duly incorporated, organized or formed and in good standing or presently subsisting under the laws of the jurisdiction of its incorporation, organization or formation.
(vii) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or any general partner or managing member of a Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably be expected to result in a Material Adverse Effect, dated reasonably near (but prior to) the Closing Date, stating, with respect to each such Loan Party, general partner or managing member, that such Loan Party, general partner or managing member, as the case may be, is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate.
(viii) A certificate of each Loan Party and of each general partner or managing member (if any) of each Loan Party, signed on behalf of such Loan Party, general partner or before managing member, as applicable, by its President, a Vice President, Executive Chairman or Chief Manager and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the day Closing Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit under Credit), certifying as to (A) the Uniform Commercial Code absence of all jurisdictions that any amendments to the Administrative Agent may deem necessary constitutive documents of such Loan Party, general partner or desirable managing member, as applicable, since the date of the certificate referred to in order to perfect and protect the first priority liens and security interests created under the Collateral DocumentsSection 3.01(a)(vi), covering the Collateral described therein,
(B) completed requests for informationa true and correct copy of the bylaws, dated operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, as applicable, as in effect on or before the date on which the resolutions referred to in Section 3.01(a)(v) were adopted and on the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above and in such other jurisdictions specified by the Administrative Agent that name any Loan Party as debtor, together with copies of such other financing statements,
(C) evidence the due incorporation, organization or formation and good standing or valid existence of such Loan Party, general partner or managing member, as applicable, as a corporation, limited liability company or partnership organized under the laws of the completion jurisdiction of all other recordings its incorporation, organization or formation and filings the absence of any proceeding for the dissolution or with respect to the Security Agreement that the Administrative Agent may deem necessary liquidation of such Loan Party, general partner or desirable in order to perfect and protect the Liens created thereby,
managing member, as applicable, (D) certificated Equity Interests in each direct and indirect Subsidiary that owns or leases a Borrowing Base Asset and stock powers and membership interest powers with respect thereto executed in blank, all in form and substance acceptable to the Administrative Agent,
(E) evidence truth of the insurance required by representations and warranties contained in the terms Loan Documents as though made on and as of the Security Agreement,
(F) copies of the Assigned Agreements referred to in the Security Agreement, including, without limitation, each of the Hotel Management Agreements with respect to each Borrowing Base Asset and the Interstate Master Agreement, together with a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties,
(G) certified copies of each management agreement and franchise agreement, and all amendments thereto, entered into on or before the Closing Date with respect to each Hotel Asset comprising a Borrowing Base Asset,
(H) certified copies of all leases (including, without limitation, all leases with Affiliates) and Material Contracts relating to each Borrowing Base Asset,
(I) a subordination agreement, in form and substance satisfactory to the Administrative Agent, executed and delivered by the manager of each Hotel Asset comprising a Borrowing Base Asset,
(J) a franchisor comfort letter in form and substance satisfactory to the Administrative Agent, executed and delivered by each franchisor of each Hotel Asset comprising a Borrowing Base Asset, and
(K) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority Liens created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters, UCC termination statements, account control agreements and landlords’ and bailees’ waiver and consent agreements).
(iii) Deeds of trust, trust deeds and mortgages in substantially the form of Exhibit H hereto (together with each other deed of trust, trust deed and mortgage delivered pursuant to Section 5.01(j), in each case as amended, the “Mortgages”) and assignments of leases and rents in substantially the form of Exhibit J hereto (together with each other assignment of leases and rents delivered pursuant to Section 5.01(j), in each case as amended, the “Assignments of Leases”) (in each case with such changes as may be required to account for local law matters and otherwise satisfactory in form and substance to the Administrative Agent) covering all Borrowing Base Assets, duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages and Assignments of Leases have been duly executed, acknowledged and delivered on or before the day date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.
(ix) A certificate of the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan Party, or of the general partner or managing member of such Loan Party, authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(x) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, historical operating statements (if any), audited annual financial statements for the year ending December 31, 2016 of the Parent Guarantor, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available and for the three months then ended and financial projections for the Parent Guarantor’s consolidated operations.
(xi) [Intentionally Omitted.]
(xii) An opinion of Kleinberg, Kaplan, Wxxxx & Cxxxx, P.C., New York counsel for the Loan Parties, with respect to the matters (and in form suitable for filing or recording substantially the form) set forth in all filing or recording offices that Exhibit F-1 hereto and as to such other matters as any Lender Party through the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the collateral described therein in favor reasonably request.
(xiii) An opinion of the Collateral Agent local counsel for the benefit Loan Parties (A) from Vxxxxxx LLP in substantially the form of the Secured Parties and that all required affidavitsExhibit F-2 hereto, tax forms and filings pertaining to any applicable documentary stamp, intangible and mortgage recordation taxes have been executed and delivered by all appropriate parties and are in form suitable for filing with all applicable governmental authorities,
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies from Hxxxx, Xxxxx & Axxxxx, LLP in substantially the form of Exhibit F-3 hereto, and (the “Mortgage Policies”C) in form and substance, with endorsements (including zoning endorsements where available) and in amounts (not to exceed $85,000,000 a Delaware opinion in the aggregate) acceptable to the Administrative Agentform of Exhibit F-4 hereto, issued by title insurers acceptable to the Administrative Agent (it being acknowledged that First American Title Insurance Company is a title insurer acceptable to the Administrative Agent as of the Closing Date), insuring the Mortgages to be valid first and subsisting Liens in favor of the Collateral Agent on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances (as defined in the Mortgages), and providing for each case covering such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) matters as any Lender Party through the Administrative Agent may deem necessary or desirable,reasonably request.
(Cxiv) American Land Title Association/American Congress on Surveying A Notice of Borrowing relating to the Initial Extension of Credit and Mapping form surveys for which all necessary fees have been paid, dated no more and delivered not less than 45 days before three (3) Business Days prior to the date of their delivery the Initial Extension of Credit.
(xv) A certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, stating that after giving effect to the Collateral AgentInitial Extension of Credit the Parent Guarantor shall be in compliance with the covenants contained in Section 5.04, certified to the Administrative Agent, the Collateral Agent and the issuer of the Mortgage Policies together with supporting information in a manner form satisfactory to the Administrative Agent showing the computations used in determining compliance with such covenants.
(b) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and its Subsidiaries, including the terms and conditions of the charter and bylaws, operating agreement, partnership agreement or other governing document of each of them.
(c) The Lender Parties shall be satisfied that all Existing Debt shall be on terms and conditions reasonably satisfactory to the Lender Parties.
(d) Before and after giving effect to the transactions contemplated by a land surveyor duly registered and licensed the Loan Documents, there shall have occurred no material adverse change in the States business, assets, properties, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Loan Parties since December 31, 2016.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to result in which a Material Adverse Effect other than the property matters described on Schedule 4.01(f) hereto (the “Material Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby, and there shall have been no material adverse change in the status, or financial effect on any Loan Party or any of its Subsidiaries, of the Material Litigation from that described on Schedule 4.01(f) hereto.
(f) All governmental and third party consents and approvals necessary in connection with the transactions contemplated by the Loan Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the Lender Parties) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lender Parties that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated by the Loan Documents.
(g) Each Subsidiary Guarantor shall have complied with the requirements of Section 5.02(p) and provided evidence of such surveys is located and acceptable compliance satisfactory to the Administrative Agent, showing .
(h) The Borrower shall have paid all buildings and other improvements, any off-site improvements, accrued fees of the location of any easements, parking spaces, rights of way, building set-back lines and other plottable dimensional regulations Administrative Agent and the absence Lender Parties and all reasonable, out-of-pocket expenses of encroachments, either by such improvements or on to such property, the Administrative Agent (including the reasonable fees and other defects, other than encroachments and other defects acceptable expenses of counsel to the Administrative Agent,
(D) zoning reports as to the properties described in the Mortgages, in form and substance reasonably acceptable to the Administrative Agent and from Planning and Zoning Resources Corp. or another professional firm reasonably acceptable to the Administrative Agent, (E) engineering, soils, seismic, environmental and other similar reports as to the properties described in the Mortgages, in form and substance and from professional firms reasonably acceptable to the Administrative Agent,).
Appears in 1 contract
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make an Advance or of any Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes, as to which one original of each shall be sufficient) in sufficient copies for each Lender Party:
(i) A Note duly executed by the Borrower and payable to the order of each Lender requesting that has requested the same.
(ii) A security agreement in substantially the form of Exhibit G hereto [Intentionally Omitted].
(together with iii) As to each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, the “Security Agreement”), duly executed by each Loan Party that owns Borrowing Base Assets, together withUnencumbered Asset:
(A) acknowledgment [Intentionally Omitted]; and
(B) evidence satisfactory to the Administrative Agent that the applicable owner or lessee, as applicable, of such Unencumbered Asset shall be in compliance with the requirements of Section 5.02(p).
(iv) This Agreement duly executed by the Loan Parties and the other parties hereto.
(v) Certified copies of proper financing statementsthe resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party (the “Closing Authorizing Resolution”), and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party.
(vi) A copy of a certificate of the Secretary of State (or equivalent authority) of the jurisdiction of incorporation, organization or formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near (but prior to) the Closing Date, certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a true and correct copy of the charter, certificate of limited partnership, limited liability company agreement or other organizational document of such Loan Party, general partner or managing member, as the case may be, and each amendment thereto on file in such Secretary’s office, (B) that such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party, general partner or managing member, as the case may be, on file in such Secretary’s office, and (C) such Loan Party, general partner or managing member, as the case may be, is duly incorporated, organized or formed and in good standing or presently subsisting under the laws of the jurisdiction of its incorporation, organization or formation.
(vii) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or any general partner or managing member of a Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably be expected to result in a Material Adverse Effect, dated reasonably near (but prior to) the Closing Date, stating, with respect to each such Loan Party, general partner or managing member, that such Loan Party, general partner or managing member, as the case may be, is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate.
(viii) A certificate of each Loan Party and of each general partner or managing member (if any) of each Loan Party, signed on behalf of such Loan Party, general partner or before managing member, as applicable, by its President, a Vice President, Executive Chairman or Chief Manager and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the day Closing Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit under Credit), certifying as to (A) the Uniform Commercial Code absence of all jurisdictions that any amendments to the Administrative Agent may deem necessary constitutive documents of such Loan Party, general partner or desirable managing member, as applicable, since the date of the certificate referred to in order to perfect and protect the first priority liens and security interests created under the Collateral DocumentsSection 3.01(a)(vi), covering the Collateral described therein,
(B) completed requests for informationa true and correct copy of the bylaws, dated operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, as applicable, as in effect on or before the date on which the resolutions referred to in Section 3.01(a)(v) were adopted and on the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above and in such other jurisdictions specified by the Administrative Agent that name any Loan Party as debtor, together with copies of such other financing statements,
(C) evidence the due incorporation, organization or formation and good standing or valid existence of such Loan Party, general partner or managing member, as applicable, as a corporation, limited liability company or partnership organized under the laws of the completion jurisdiction of all other recordings its incorporation, organization or formation and filings the absence of any proceeding for the dissolution or with respect to the Security Agreement that the Administrative Agent may deem necessary liquidation of such Loan Party, general partner or desirable in order to perfect and protect the Liens created thereby,
managing member, as applicable, (D) certificated Equity Interests in each direct and indirect Subsidiary that owns or leases a Borrowing Base Asset and stock powers and membership interest powers with respect thereto executed in blank, all in form and substance acceptable to the Administrative Agent,
(E) evidence truth of the insurance required by representations and warranties contained in the terms Loan Documents as though made on and as of the Security Agreement,
(F) copies of the Assigned Agreements referred to in the Security Agreement, including, without limitation, each of the Hotel Management Agreements with respect to each Borrowing Base Asset and the Interstate Master Agreement, together with a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties,
(G) certified copies of each management agreement and franchise agreement, and all amendments thereto, entered into on or before the Closing Date with respect to each Hotel Asset comprising a Borrowing Base Asset,
(H) certified copies of all leases (including, without limitation, all leases with Affiliates) and Material Contracts relating to each Borrowing Base Asset,
(I) a subordination agreement, in form and substance satisfactory to the Administrative Agent, executed and delivered by the manager of each Hotel Asset comprising a Borrowing Base Asset,
(J) a franchisor comfort letter in form and substance satisfactory to the Administrative Agent, executed and delivered by each franchisor of each Hotel Asset comprising a Borrowing Base Asset, and
(K) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority Liens created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters, UCC termination statements, account control agreements and landlords’ and bailees’ waiver and consent agreements).
(iii) Deeds of trust, trust deeds and mortgages in substantially the form of Exhibit H hereto (together with each other deed of trust, trust deed and mortgage delivered pursuant to Section 5.01(j), in each case as amended, the “Mortgages”) and assignments of leases and rents in substantially the form of Exhibit J hereto (together with each other assignment of leases and rents delivered pursuant to Section 5.01(j), in each case as amended, the “Assignments of Leases”) (in each case with such changes as may be required to account for local law matters and otherwise satisfactory in form and substance to the Administrative Agent) covering all Borrowing Base Assets, duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages and Assignments of Leases have been duly executed, acknowledged and delivered on or before the day date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.
(ix) A certificate of the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan Party, or of the general partner or managing member of such Loan Party, authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(x) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, historical operating statements (if any), audited annual financial statements for the year ending December 31, 2016 of the Parent Guarantor, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available and for the three months then ended and financial projections for the Parent Guarantor’s consolidated operations.
(xi) [Intentionally Omitted.]
(xii) An opinion of Kleinberg, Kaplan, Xxxxx & Xxxxx, P.C., New York counsel for the Loan Parties, with respect to the matters (and in form suitable for filing or recording substantially the form) set forth in all filing or recording offices that Exhibit F-1 hereto and as to such other matters as any Lender Party through the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the collateral described therein in favor reasonably request.
(xiii) An opinion of the Collateral Agent local counsel for the benefit Loan Parties (A) from Xxxxxxx LLP in substantially the form of the Secured Parties and that all required affidavitsExhibit F-2 hereto, tax forms and filings pertaining to any applicable documentary stamp, intangible and mortgage recordation taxes have been executed and delivered by all appropriate parties and are in form suitable for filing with all applicable governmental authorities,
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies from Xxxxx, Xxxxx & Xxxxxx, LLP in substantially the form of Exhibit F-3 hereto, (C) from Xxxxxx Xxxxxx Xxxxxxx LLP in substantially the form of Exhibit F-4 hereto, and (D) a Delaware opinion in the form of Exhibit F-5 hereto, in each case covering such other matters as any Lender Party through the Administrative Agent may reasonably request.
(xiv) A Notice of Borrowing relating to the Initial Extension of Credit and dated and delivered not less than three (3) Business Days prior to the date of the Initial Extension of Credit.
(xv) A certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, stating that after giving effect to the Initial Extension of Credit the Parent Guarantor shall be in compliance with the covenants contained in Section 5.04, together with supporting information in form satisfactory to the Administrative Agent showing the computations used in determining compliance with such covenants.
(b) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and its Subsidiaries, including the terms and conditions of the charter and bylaws, operating agreement, partnership agreement or other governing document of each of them.
(c) The Lender Parties shall be satisfied that all Existing Debt shall be on terms and conditions reasonably satisfactory to the Lender Parties.
(d) Before and after giving effect to the transactions contemplated by the Loan Documents, there shall have occurred no material adverse change in the business, assets, properties, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Loan Parties since December 31, 2016.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to result in a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Mortgage PoliciesMaterial Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby, and there shall have been no material adverse change in form the status, or financial effect on any Loan Party or any of its Subsidiaries, of the Material Litigation from that described on Schedule 4.01(f) hereto.
(f) All governmental and substance, third party consents and approvals necessary in connection with endorsements the transactions contemplated by the Loan Documents shall have been obtained (including zoning endorsements where availablewithout the imposition of any conditions that are not acceptable to the Lender Parties) and shall remain in amounts (not to exceed $85,000,000 effect, and no law or regulation shall be applicable in the aggregatereasonable judgment of the Lender Parties that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated by the Loan Documents.
(g) acceptable Each Subsidiary Guarantor shall have complied with the requirements of Section 5.02(p) and provided evidence of such compliance satisfactory to the Administrative Agent.
(h) The Borrower shall have paid all accrued fees of the Administrative Agent and the Lender Parties and all reasonable, issued out-of-pocket expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent).
(i) The Borrower and each Guarantor shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by title insurers acceptable the Administrative Agent or any Lender to comply with its “know your customer” requirements and to confirm compliance with all applicable Sanctions, Anti-Corruption Laws, the Trading with the Enemy Act and the Patriot Act, and (ii) if the Borrower qualifies as a “legal entity customer” within the meaning of the Beneficial Ownership Regulation, the Borrower shall have provided to the Administrative Agent (it being acknowledged that First American Title Insurance Company is a title insurer acceptable to for further delivery by the Administrative Agent as of to the Lenders in accordance with its customary practice) a Beneficial Ownership Certification for the Borrower; in each case delivered at least five Business Days prior to the Closing Date), insuring the Mortgages to be valid first and subsisting Liens in favor of the Collateral Agent on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances (as defined in the Mortgages), and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) as the Administrative Agent may deem necessary or desirable,
(C) American Land Title Association/American Congress on Surveying and Mapping form surveys for which all necessary fees have been paid, dated no more than 45 days before the date of their delivery to the Collateral Agent, certified to the Administrative Agent, the Collateral Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other plottable dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent,
(D) zoning reports as to the properties described in the Mortgages, in form and substance reasonably acceptable to the Administrative Agent and from Planning and Zoning Resources Corp. or another professional firm reasonably acceptable to the Administrative Agent, (E) engineering, soils, seismic, environmental and other similar reports as to the properties described in the Mortgages, in form and substance and from professional firms reasonably acceptable to the Administrative Agent,.
Appears in 1 contract
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make an Advance or of any Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes, as to which one original of each shall be sufficient) in sufficient copies for each Lender Party:
(i) A Note duly executed by the Borrower and payable to the order of each Lender requesting that has requested the same.
(ii) A security agreement in substantially the form of Exhibit G hereto [Intentionally Omitted].
(together with iii) As to each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, the “Security Agreement”), duly executed by each Loan Party that owns Borrowing Base Assets, together withUnencumbered Asset:
(A) acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents, covering the Collateral described therein[Intentionally Omitted],
(B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred evidence satisfactory to in clause (A) above and in such other jurisdictions specified by the Administrative Agent that name any Loan Party the applicable owner or lessee, as debtorapplicable, together with copies of such other financing statementsUnencumbered Asset shall be in compliance with the requirements of Section 5.02(p),
(C) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby[Intentionally Omitted],
(D) certificated Equity Interests in each direct and indirect Subsidiary that owns or leases a Borrowing Base Asset and stock powers and membership interest powers with respect thereto executed in blank, all in form and substance acceptable to the Administrative Agent[Intentionally Omitted],
(E) evidence of the insurance required by the terms of the Security Agreement[Intentionally Omitted],
(F) copies of the Assigned Agreements referred to in the Security Agreement, including, without limitation, each of the Hotel Management Agreements with respect to each Borrowing Base Asset and the Interstate Master Agreement, together with a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties,
(G) certified copies of each management agreement and franchise agreementManagement Agreement, and Franchise Agreement, and, to the extent applicable, Qualifying Ground Lease, in each case together with all amendments thereto, entered into on or before the Closing Date with respect to each Hotel Asset comprising a Borrowing Base Assetof the Unencumbered Assets,
(HG) certified copies of all leases (including, without limitation, all leases with AffiliatesAffiliates and Operating Leases) and Material Contracts relating to each Borrowing Base Asset,of the Unencumbered Assets, and
(Iiv) This Agreement duly executed by the Loan Parties and the other parties hereto.
(v) Certified copies of the resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a subordination agreementparty (the “Closing Authorizing Resolution”), and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party.
(vi) A copy of a certificate of the Secretary of State (or equivalent authority) of the jurisdiction of incorporation, organization or formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near the Closing Date, certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a true and correct copy of the charter, certificate of limited partnership, limited liability company agreement or other organizational document of such Loan Party, general partner or managing member, as the case may be, and each amendment thereto on file in form such Secretary’s office, (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party, general partner or managing member, as the case may be, on file in such Secretary’s office, (2) such Loan Party, general partner or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and substance satisfactory (C) such Loan Party, general partner or managing member, as the case may be, is duly incorporated, organized or formed and in good standing or presently subsisting under the laws of the jurisdiction of its incorporation, organization or formation. Notwithstanding the foregoing, if the information required in this subsection (vi) shall have previously been delivered to the Administrative Agent, executed the Administrative Agent will accept, in lieu of such materials (other than with respect to evidence of good standing and delivered by current payment of franchise taxes), a certificate from the manager applicable Loan Party that there has been no change to such materials since the date most recently provided to the Administrative Agent.
(vii) A copy of a certificate of the Secretary of State (or equivalent authority) of each Hotel Asset comprising jurisdiction in which any Loan Party or any general partner or managing member of a Borrowing Base Asset,
Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably be expected to result in a Material Adverse Effect, dated reasonably near (Jbut prior to) the Closing Date, stating, with respect to each such Loan Party, general partner or managing member, that such Loan Party, general partner or managing member, as the case may be, is duly qualified and in good standing as a franchisor comfort letter foreign corporation, limited partnership or limited liability company in form such State and substance satisfactory has filed all annual reports required to be filed to the date of such certificate. Notwithstanding the foregoing, if the information required in this subsection (vii) shall have previously been delivered to the Administrative Agent, executed and delivered by each franchisor of each Hotel Asset comprising a Borrowing Base Asset, and
(K) evidence that all other action that the Administrative Agent may deem necessary or desirable will accept, in order lieu of such materials (other than with respect to perfect evidence of good standing and protect current required annual reports), a certificate from the first priority Liens created under the Security Agreement applicable Loan Party that there has been taken (including, without limitation, receipt of duly executed payoff letters, UCC termination statements, account control agreements and landlords’ and bailees’ waiver and consent agreements).
(iii) Deeds of trust, trust deeds and mortgages in substantially no change to such materials since the form of Exhibit H hereto (together with each other deed of trust, trust deed and mortgage delivered pursuant to Section 5.01(j), in each case as amended, the “Mortgages”) and assignments of leases and rents in substantially the form of Exhibit J hereto (together with each other assignment of leases and rents delivered pursuant to Section 5.01(j), in each case as amended, the “Assignments of Leases”) (in each case with such changes as may be required to account for local law matters and otherwise satisfactory in form and substance date most recently provided to the Administrative Agent.
(viii) covering all Borrowing Base Assets, duly executed by the appropriate A certificate of each Loan Party and of each general partner or managing member (if any) of each Loan Party, together with:
signed on behalf of such Loan Party, general partner or managing member, as applicable, by its President, a Vice President, Executive Chairman or Chief Manager and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the Closing Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) evidence that counterparts the absence of any amendments to the constitutive documents of such Loan Party, general partner or managing member, as applicable, since the date of the Mortgages certificate referred to in Section 3.01(a)(vi), (B) a true and Assignments correct copy of Leases have been duly executedthe bylaws, acknowledged operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, as applicable, as in effect on the date on which the resolutions referred to in Section 3.01(a)(v) were adopted and delivered on the date of the Initial Extension of Credit, (C) the due incorporation, organization or before formation and good standing or valid existence of such Loan Party, general partner or managing member, as applicable, as a corporation, limited liability company or partnership organized under the day laws of the jurisdiction of its incorporation, organization or formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party, general partner or managing member, as applicable, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.
(ix) A certificate of the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan Party, or of the general partner or managing member of such Loan Party, authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(x) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, historical operating statements (if any), audited annual financial statements for the year ending December 31, 2017 of the Parent Guarantor, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available and for the nine months then ended and financial projections for the Parent Guarantor’s consolidated operations.
(xi) Evidence of insurance (which may consist of binders or certificates of insurance) with such responsible and reputable insurance companies or associations, and in form suitable such amounts and covering such risks, as is satisfactory to the Lender Parties.
(xii) An opinion of Xxxxxxxxx, Xxxxxx, Xxxxx & Xxxxx, P.C., New York counsel for filing or recording the Loan Parties, with respect to the matters (and in all filing or recording offices that substantially the form) set forth in Exhibit F-1 hereto and as to such other matters as any Lender Party through the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the collateral described therein in favor reasonably request.
(xiii) An opinion of the Collateral Agent local counsel for the benefit Loan Parties (A) from Xxxxxxx LLP in substantially the form of the Secured Parties Exhibit F-2 hereto, and that all required affidavits, tax forms and filings pertaining to any applicable documentary stamp, intangible and mortgage recordation taxes have been executed and delivered by all appropriate parties and are in form suitable for filing with all applicable governmental authorities,
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (from Xxxxx, Xxxxx & Xxxxxx, LLP in substantially the “Mortgage Policies”) form of Exhibit F-3 hereto, in form and substance, with endorsements (including zoning endorsements where available) and in amounts (not to exceed $85,000,000 in the aggregate) acceptable to the Administrative Agent, issued by title insurers acceptable to the Administrative Agent (it being acknowledged that First American Title Insurance Company is a title insurer acceptable to the Administrative Agent as of the Closing Date), insuring the Mortgages to be valid first and subsisting Liens in favor of the Collateral Agent on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances (as defined in the Mortgages), and providing for each case covering such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) matters as any Lender Party through the Administrative Agent may deem necessary or desirable,reasonably request.
(Cxiv) American Land Title Association/American Congress on Surveying and Mapping form surveys for which all necessary fees have been paidA Notice of Borrowing or Notice of Issuance, dated no more than 45 days before the date of their delivery as applicable, relating to the Collateral Agent, certified to the Administrative Agent, the Collateral Agent Initial Extension of Credit and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered dated and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other plottable dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other delivered not less than encroachments and other defects acceptable to the Administrative Agent,
(D) zoning reports as to the properties described in the Mortgages, in form and substance reasonably acceptable to the Administrative Agent and from Planning and Zoning Resources Corp. or another professional firm reasonably acceptable to the Administrative Agent, (E) engineering, soils, seismic, environmental and other similar reports as to the properties described in the Mortgages, in form and substance and from professional firms reasonably acceptable to the Administrative Agent,three
Appears in 1 contract
Samples: Credit Agreement
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make an Advance or of any Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notesitems specified in clause (i) below) in sufficient copies for each Lender PartyLender:
(i) A Note Notes payable to the order of each Lender requesting the same.
(ii) A security agreement in substantially the form of Exhibit G hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j)The Escrow Agreement, in each case as amended, the “Security Agreement”), duly executed by each Loan Party that owns Borrowing Base Assets, together with:
(A) acknowledgment copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents, covering the Collateral described therein,
(B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above and in such other jurisdictions specified by the Administrative Agent that name any Loan Party as debtor, together with copies of such other financing statements,
(C) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby,
(D) certificated Equity Interests in each direct and indirect Subsidiary that owns or leases a Borrowing Base Asset and stock powers and membership interest powers with respect thereto executed in blank, all in form and substance acceptable to the Administrative Escrow Agent,
(E) evidence of the insurance required by the terms of the Security Agreement,
(F) copies of the Assigned Agreements referred to in the Security Agreement, including, without limitation, each of the Hotel Management Agreements with respect to each Borrowing Base Asset and the Interstate Master Agreement, together with a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties,
(G) certified copies , each of each management agreement the Lenders and franchise agreement, and all amendments thereto, entered into on or before the Closing Date with respect to each Hotel Asset comprising a Borrowing Base Asset,
(H) certified copies of all leases (including, without limitation, all leases with Affiliates) and Material Contracts relating to each Borrowing Base Asset,
(I) a subordination agreement, in form and substance satisfactory to the Administrative Agent, executed and delivered by the manager of each Hotel Asset comprising a Borrowing Base Asset,
(J) a franchisor comfort letter in form and substance satisfactory to the Administrative Agent, executed and delivered by each franchisor of each Hotel Asset comprising a Borrowing Base Asset, and
(K) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority Liens created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters, UCC termination statements, account control agreements and landlords’ and bailees’ waiver and consent agreements).
(iii) Deeds Certified copies of trust, trust deeds and mortgages in substantially the form resolutions of Exhibit H hereto the Board of Directors (together with each other deed of trust, trust deed and mortgage delivered pursuant to Section 5.01(jor equivalent body), in general partner or managing member, as applicable, of each case as amended, Loan Party and of each general partner or managing member (if any) of each Loan Party approving the “Mortgages”) transactions contemplated by the Loan Documents and assignments of leases and rents in substantially each Loan Document to which it is or is to be a party (solely to the form of Exhibit J hereto (together with each other assignment of leases and rents delivered pursuant to Section 5.01(jextent required under such Loan Party’s applicable governing documents), in each case as amended, the “Assignments of Leases”) (in each case with such changes as may be required to account for local law matters and otherwise satisfactory in form and substance to the Administrative Agent) covering all Borrowing Base Assets, duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages and Assignments of Leases have been duly executed, acknowledged and delivered on or before the day of the Initial Extension of Credit and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the collateral described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all required affidavits, tax forms and filings pertaining to any applicable documentary stamp, intangible and mortgage recordation taxes have been executed and delivered by all appropriate parties and are in form suitable for filing with all applicable governmental authorities,
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements (including zoning endorsements where available) and in amounts (not to exceed $85,000,000 in the aggregate) acceptable to the Administrative Agent, issued by title insurers acceptable to the Administrative Agent (it being acknowledged that First American Title Insurance Company is a title insurer acceptable to the Administrative Agent as of the Closing Date), insuring the Mortgages to be valid first and subsisting Liens in favor of the Collateral Agent on the property described therein, free and clear of all defects documents evidencing other necessary corporate action and governmental and other third party approvals and consents (including, but not limited toin relation to a Dutch entity, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances any action required to comply with the Dutch Works Councils Act (as defined in the MortgagesWet op de ondernemingsraden)), and providing for such other affirmative insurance (including endorsements for future advances if any, with respect to the transactions under the Loan Documents and each Loan Document to which it is or is to be a party.
(iv) A copy of a certificate of the Secretary of State (or equivalent authority (if any)) of the jurisdiction of incorporation, organization or formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near the Closing Date, certifying, if and to the extent such certification is generally available for mechanics’ and materialmen’s Liensentities of the type of such Loan Party, (A) as to a true and complete copy of the Administrative Agent charter, certificate of limited partnership, limited liability company agreement or other organizational document of such Loan Party, general partner or managing member, as the case may deem necessary be, and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or desirable,
other organizational document, as applicable, of such Loan Party, general partner or managing member, as the case may be, on file in such Secretary’s office and (2) to the extent available, such Loan Party, general partner or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) American Land Title Association/American Congress on Surveying such Loan Party, general partner or managing member, as the case may be, is duly incorporated, organized or formed and Mapping form surveys for which all necessary fees have been paid, dated no more than 45 days before in good standing (if a concept of good standing exists under the date of their delivery to the Collateral Agent, certified to the Administrative Agent, the Collateral Agent and the issuer laws of the Mortgage Policies in a manner satisfactory to jurisdiction of the Administrative Agent by a land surveyor duly registered and licensed in incorporation, organization or formation of such Loan Party) or presently subsisting under the States in which laws of the property described in such surveys is located and acceptable to the Administrative Agentjurisdiction of its incorporation, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other plottable dimensional regulations and the absence of encroachments, either by such improvements organization or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent,
(D) zoning reports as to the properties described in the Mortgages, in form and substance reasonably acceptable to the Administrative Agent and from Planning and Zoning Resources Corp. or another professional firm reasonably acceptable to the Administrative Agent, (E) engineering, soils, seismic, environmental and other similar reports as to the properties described in the Mortgages, in form and substance and from professional firms reasonably acceptable to the Administrative Agent,formation.
Appears in 1 contract
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make an Advance or of any Issuing Bank to continue the Existing Letters of Credit under this Agreement or of any Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notesitems specified in clauses (i) and (ii) below) in sufficient copies for each Lender Party:
(i) A Note payable to the order of each Lender requesting the same.
(ii) A security agreement [Reserved].
(iii) Certified copies of the resolutions of the Board of Directors, Board of Commissioners (in substantially the form case of Exhibit G hereto the IDR Borrowers) (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(jor equivalent body), in each case general partner or managing member, as amendedapplicable, the “Security Agreement”), duly executed by of each Loan Party that owns Borrowing Base Assetsand of each general partner or managing member (if any) of each Loan Party approving the transactions contemplated by the Loan Documents and each Loan Document to which it is or is to be a party (solely to the extent required under such Loan Party’s applicable governing documents), together with:and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents (including, in relation to a Dutch entity, any action required to comply with the Dutch Works Councils Act (Wet op de ondernemingsraden)), if any, with respect to the transactions under the Loan Documents and each Loan Document to which it is or is to be a party.
(iv) A copy of a certificate of the Secretary of State (or equivalent authority (if any)) of the jurisdiction of incorporation, organization or formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near the Closing Date, certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) acknowledgment copies as to a true and complete copy of proper financing statementsthe charter, certificate of limited partnership, limited liability company agreement or other organizational document of such Loan Party, general partner or managing member, as the case may be, and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party, general partner or managing member, as the case may be, on file in such Secretary’s office and (2) to the extent available, such Loan Party, general partner or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) such Loan Party, general partner or managing member, as the case may be, is duly filed incorporated, organized or formed and in good standing (if a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) or presently subsisting under the laws of the jurisdiction of its incorporation, organization or formation.
(v) [Reserved.]
(vi) A certificate of each Loan Party and of each general partner or managing member (if any) of each Loan Party, signed on behalf of such Loan Party, general partner or before managing member, as applicable, by its President, a Vice President, its Secretary, its Assistant Secretary or authorized signatory (or those of its general partner or managing member, if applicable), or in the day case of a Loan Party organized in Japan or South Korea, corporate seal, dated the Closing Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit under Credit), certifying as to (A) the Uniform Commercial Code absence of all jurisdictions that any amendments to the Administrative Agent may deem necessary constitutive documents of such Loan Party, general partner or desirable managing member, as applicable, since the date of the certificate referred to in order to perfect and protect the first priority liens and security interests created under the Collateral DocumentsSection 3.01(a)(iv), covering the Collateral described therein,
(B) completed requests for informationa true and complete copy of the bylaws, dated memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, as applicable, as in effect on or before the date on which the resolutions referred to in Section 3.01(a)(iii) were adopted and on the date of the Initial Extension of Credit, listing (C) the due incorporation, organization or formation and good standing (if a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) or valid existence of such Loan Party, general partner or managing member, as applicable, as a corporation, limited liability company or partnership organized under the laws of the jurisdiction of its incorporation, organization or formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party, general partner or managing member, as applicable, (D) the accuracy in all effective financing statements filed material respects (unless qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be true and correct in all respects) of the representations and warranties contained in the jurisdictions referred Loan Documents as though made on and as of the date of the Initial Extension of Credit (except to the extent such representations and warranties relate to an earlier date, in clause which such representations and warranties shall be true and correct in all material respects or all respects, as applicable, on or as of such earlier date) and (AE) above the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party or any authorized signatory (or Responsible Officer of the general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures (or in such other jurisdictions specified the case of a Loan Party organized in Japan executing by corporate seal, (i) a certificate of seal and a certificate of full registry records both of which have been issued by the competent legal affairs bureau within three months before the date of the applicable officer’s certificate and (ii) a seal registration form (in the form prescribed by the Administrative Agent that name any Agent)) of the officers or other authorized signatories of such Loan Party, or of the general partner or managing member of such Loan Party, authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder, and in the case of a Loan Party as debtororganized in South Korea executing by corporate seal, together with copies a corporate seal certificate and commercial registry extracts both of such other financing statements,which have been issued by the competent governmental bureau within three months before the date of the applicable officer’s certificate).
(Cviii) evidence The audited Consolidated annual financial statements for the year ending December 31, 2023 of the completion Parent Guarantor and interim financial statements dated the end of all the most recent fiscal quarter for which financial statements are available.
(ix) Such financial, business and other recordings information regarding each Loan Party and filings its Subsidiaries as the Lender Parties shall have reasonably requested.
(x) Evidence of insurance (which may consist of binders or certificates of insurance with respect to the Security Agreement blanket policies of insurance maintained by the Loan Parties that satisfies the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby,requirements of Section 5.01(d).
(Dxi) certificated Equity Interests in each direct and indirect Subsidiary that owns or leases a Borrowing Base Asset and stock powers and membership interest powers with respect thereto executed in blankAn opinion of Xxxxxx & Xxxxxxx LLP, all in form and substance acceptable to the Administrative Agent,
(E) evidence of the insurance required by the terms of the Security Agreement,
(F) copies of the Assigned Agreements referred to in the Security Agreement, including, without limitation, each of the Hotel Management Agreements with respect to each Borrowing Base Asset and the Interstate Master Agreement, together with a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than counsel for the Loan Parties,
(G) certified copies of each management agreement and franchise agreement, and all amendments thereto, entered into on or before the Closing Date with respect to each Hotel Asset comprising a Borrowing Base Asset,
(H) certified copies of all leases (including, without limitation, all leases with Affiliates) and Material Contracts relating to each Borrowing Base Asset,
(I) a subordination agreement, in form and substance satisfactory to the Administrative Agent, executed and delivered by the manager of each Hotel Asset comprising a Borrowing Base Asset,.
(Jxii) a franchisor comfort letter An opinion of Xxxxxxx LLP, Maryland counsel for the Loan Parties, in form and substance satisfactory to the Administrative Agent, executed and delivered by each franchisor of each Hotel Asset comprising a Borrowing Base Asset, and.
(Kxiii) evidence An opinion of Xxxxxx & Xxxxxxx LLP, Singapore counsel for the Loan Parties, in form and substance satisfactory to the Administrative Agent.
(xiv) An opinion of A&O Xxxxxxxx, Indonesian counsel for the Loan Parties, in form and substance satisfactory to the Administrative Agent.
(xv) An opinion of Shin & Xxx LLC, South Korean counsel for the Loan Parties, in form and substance satisfactory to the Administrative Agent.
(xvi) An opinion of Xxxxxxx, British Virgin Islands counsel for the Loan Parties, in form and substance satisfactory to the Administrative Agent.
(xvii) [Reserved].
(xviii) An opinion of Brodies LLP, Scottish counsel for the Loan Parties, in form and substance satisfactory to the Administrative Agent.
(xix) An opinion of Xxxxxx & Xxxxxxx LLP, Hong Kong counsel for the Loan Parties, in form and substance satisfactory to the Administrative Agent.
(xx) An opinion of De Brauw Blackstone Westbroek N.V., Netherlands counsel for the Loan Parties, in form and substance satisfactory to the Administrative Agent.
(xxi) One or more Notices of Borrowing, each dated not later than the applicable Notice of Borrowing Deadline, or Notices of Issuance, as applicable, and specifying the initial Borrowing date as the date of the proposed Borrowing.
(xxii) An Unencumbered Assets Certificate prepared on a pro forma basis to account for any acquisitions, dispositions or reclassifications of Assets, and the incurrence or repayment of any Debt for Borrowed Money relating to such Assets, that all have occurred since June 30, 2024.
(xxiii) (A) The documentation and other action that information reasonably requested by any Lender at least ten Business Days prior to the Closing Date in connection with applicable "know your customer" and Anti-Corruption Laws, including, without limitation, the Patriot Act and the Beneficial Ownership Regulation, in each case in form and substance reasonably satisfactory to such Lender, and (B) if any Borrower qualifies as a “legal entity customer” within the meaning of the Beneficial Ownership Regulation, a Beneficial Ownership Certification for such Borrower; in each case delivered at least five Business Days prior to the Closing Date.
(xxiv) A letter from the Initial Process Agent addressed to the Administrative Agent may deem necessary or desirable in order confirming its agreement to perfect act as the Initial Process Agent for the purposes of Section 9.14(c).
(xxv) With respect to each Borrower that is a TMK (if any), (x) a certified copy of such Borrower’s business commencement notification (gyoumu kaishi todoke) (including the asset liquidation plan and protect other attachments) affixed with a receipt stamp of the first priority Liens created under director of the Security Agreement competent local finance bureau, (y) copies of any modification (if any) to the asset liquidation plan since the date of filing of such business commencement notification affixed with a receipt stamp of the director of the competent local finance bureau, and (z) a valid and current asset liquidation plan (affixed with a receipt stamp of the director of the competent local finance bureau if it has been taken submitted to the competent local finance bureau).
(b) The Lender Parties shall be satisfied with any change to the corporate and legal structure of any Loan Party or any Subsidiary thereof occurring after December 31, 2023, including any changes to the terms and conditions of the charter and bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of any Loan Party occurring after December 31, 2023.
(c) The Lender Parties shall be satisfied that all Existing Debt (including, without limitation, receipt all Debt under the Existing Revolving Credit Agreement other than the Existing Letters of duly executed payoff lettersCredit), UCC termination statementsother than Surviving Debt, account control agreements has been prepaid, redeemed or defeased in full or otherwise satisfied and landlords’ and bailees’ waiver and consent agreements)extinguished.
(iiid) Deeds Before and immediately after giving effect to the transactions contemplated by the Loan Documents, there shall have occurred no material adverse change in the business or financial condition of trustthe Parent Guarantor and its Subsidiaries taken as a whole since December 31, trust deeds 2023.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby.
(f) All material governmental and mortgages third party consents and approvals necessary in substantially connection with the form transactions contemplated by the Loan Documents shall have been obtained (without the imposition of Exhibit H hereto (together with each other deed of trust, trust deed and mortgage delivered pursuant any conditions that are not acceptable to Section 5.01(j), in each case as amended, the “Mortgages”Lender Parties) and assignments shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of leases and rents in substantially the form of Exhibit J hereto (together with each other assignment of leases and rents delivered pursuant to Section 5.01(j)Lender Parties that restrains, in each case as amended, prevents or imposes materially adverse conditions upon the “Assignments of Leases”) (in each case with such changes as may be required to account for local law matters and otherwise satisfactory in form and substance to the Administrative Agent) covering all Borrowing Base Assets, duly executed transactions contemplated by the appropriate Loan Party, together with:Documents.
(Ag) evidence that counterparts The Borrowers shall have paid all accrued fees of the Mortgages and Assignments of Leases have been duly executed, acknowledged and delivered on or before the day of the Initial Extension of Credit and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the collateral described therein in favor Lender Parties and all reasonable out-of-pocket expenses of the Collateral Administrative Agent for the benefit of the Secured Parties and that all required affidavits, tax forms and filings pertaining to any applicable documentary stamp, intangible and mortgage recordation taxes have been executed and delivered by all appropriate parties and are in form suitable for filing with all applicable governmental authorities,
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements (including zoning endorsements where available) the reasonable fees and in amounts (not to exceed $85,000,000 in the aggregate) acceptable expenses of counsel to the Administrative Agent, issued by title insurers acceptable subject to the Administrative Agent (it being acknowledged that First American Title Insurance Company is a title insurer acceptable to the Administrative Agent as terms of the Closing DateFee Letter), insuring the Mortgages to be valid first and subsisting Liens in favor of the Collateral Agent on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances (as defined in the Mortgages), and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) as the Administrative Agent may deem necessary or desirable,
(C) American Land Title Association/American Congress on Surveying and Mapping form surveys for which all necessary fees have been paid, dated no more than 45 days before the date of their delivery to the Collateral Agent, certified to the Administrative Agent, the Collateral Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other plottable dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent,
(D) zoning reports as to the properties described in the Mortgages, in form and substance reasonably acceptable to the Administrative Agent and from Planning and Zoning Resources Corp. or another professional firm reasonably acceptable to the Administrative Agent, (E) engineering, soils, seismic, environmental and other similar reports as to the properties described in the Mortgages, in form and substance and from professional firms reasonably acceptable to the Administrative Agent,.
Appears in 1 contract
Samples: Global Senior Credit Agreement (Digital Realty Trust, L.P.)
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make an Advance or of any Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with the Initial Extension of Credit:
(a) The Administrative Paying Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Paying Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:
(i) A Note The Notes payable to the order of each Lender requesting the sameLenders that have requested Notes prior to the Effective Date.
(ii) A security guaranty in substantially the form of Exhibit D hereto (together with each other guaranty and guaranty supplement delivered from time to time pursuant to Section 5.01(i), in each case as amended, the "SUBSIDIARY GUARANTY"), duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of or on behalf of each Loan Party approving the Transaction (to the extent applicable to it) and each Transaction Document to which it is or is to be a party and/or authorizing the general partner, managing member or officers, as applicable, to act on behalf of such limited partnership or limited liability company, as the case may be, and of all documents evidencing other necessary action (including, without limitation, all necessary general partner, managing member, board of directors or other similar action) and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(iv) A copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary's office and (B) that (1) such amendments are the only amendments to such Person's charter or similar Constitutive Documents on file in such Secretary's office, (2) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(v) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the Initial Extension of Credit, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(vi) A certificate of each Loan Party or on its behalf by the managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the charter or similar Constitutive Documents of such Person since the date of the Secretary of State's certificate referred to in Section 3.01(a)(iv), (B) a true and correct copy of the bylaws or limited liability company agreement (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(iii) were adopted and on the date of the Initial Extension of Credit, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party or on its behalf by its managing general partner or managing member, as applicable certifying the names and true signatures of the officers or managers, as applicable, of such Person authorized to sign on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(viii) Certified copies of each of the Related Documents, duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection with the Note Purchase Agreement as the Paying Agent shall request.
(ix) A certificate, substantially in the form of Exhibit E hereto (the "SOLVENCY CERTIFICATE"), attesting to the Solvency of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer (or person performing similar functions) of the Borrower.
(x) A five year Business Plan in form and scope satisfactory to the Lenders.
(xi) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit.
(xii) A favorable opinion of Xxxxxx Xxxxxx Xxxxx Xxxxxxxx, counsel for the Loan Parties, in substantially the form of Exhibit F-1 hereto.
(xiii) A favorable opinion of Xxxxxx X. Xxxxxxx, Senior Vice President-Law and Administration, General Counsel and Secretary of the General Partner, in substantially the form of Exhibit F-2 hereto.
(xiv) A favorable opinion of Shearman & Sterling, counsel for the Agents, in form and substance satisfactory to the Agents.
(xv) An intercreditor agreement in substantially the form of Exhibit G hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j), in each case as amended, the “Security Agreement”"INTERCREDITOR AGREEMENT"), duly executed by the Paying Agent, the noteholders under the Note Purchase Agreement, the Subsidiary Guarantors and the Borrower.
(b) The Lender Parties shall be satisfied with the capitalization of each Loan Party that owns Borrowing Base Assets, together with:
(A) acknowledgment copies and the partnership or limited liability company structure of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents, covering the Collateral described therein,
(B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above and in such other jurisdictions specified by the Administrative Agent that name any each Loan Party and its managing general partner or managing member, as debtor, together with copies of such other financing statements,
(C) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby,
(D) certificated Equity Interests in each direct and indirect Subsidiary that owns or leases a Borrowing Base Asset and stock powers and membership interest powers with respect thereto executed in blank, all in form and substance acceptable to the Administrative Agent,
(E) evidence of the insurance required by the terms of the Security Agreement,
(F) copies of the Assigned Agreements referred to in the Security Agreementapplicable, including, without limitation, each the terms and conditions of the Hotel Management Agreements with respect Constitutive Documents and each class of Capital Stock in such Loan Party and each other agreement or instrument relating to each Borrowing Base Asset such partnership structure, legal structure, and capitalization, and the Interstate Master Agreement, together with tax status of the Borrower as being treated as a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties,partnership for tax purposes.
(Gc) certified copies of each management agreement and franchise agreement, and The Lender Parties shall be satisfied that all amendments thereto, entered into on or before the Closing Date with respect to each Hotel Asset comprising a Borrowing Base Asset,
(H) certified copies of all leases Existing Debt (including, without limitation, the Existing Facility), other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished, all leases with Affiliates) commitments relating thereto terminated and Material Contracts relating to each Borrowing Base Asset,
(I) a subordination agreement, all liens and security interests granted in form connection therewith released and substance that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent, executed and delivered by the manager of each Hotel Asset comprising a Borrowing Base Asset,Lender Parties.
(Jd) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2002.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting the General Partner, any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any Governmental Authority that (i) would be reasonably likely to have a franchisor comfort letter in form and substance Material Adverse Effect other than the matters satisfactory to the Administrative AgentPaying Agent and described on Schedule 4.01(f) hereto (the "DISCLOSED LITIGATION") or (ii) purports to affect the legality, executed validity or enforceability of any Transaction Document or the consummation of the Transaction, and delivered by each franchisor there shall have been no material adverse change in the status, or financial effect on the General Partner, any Loan Party or any of each Hotel Asset comprising a Borrowing Base Assetits Subsidiaries, and
(Kof the Disclosed Litigation from that described on Schedule 4.01(f) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority Liens created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters, UCC termination statements, account control agreements and landlords’ and bailees’ waiver and consent agreements)hereto.
(iiif) Deeds All Governmental Authorizations and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of trust, trust deeds being obtained so long as it is not anticipated that such consents and mortgages approvals may not be obtained (in substantially each case without the form imposition of Exhibit H hereto any conditions that are not acceptable to the Lender Parties) and those obtained shall be in effect (together with each other deed than those the failure to obtain which would individually or collectively be reasonably likely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of trust, trust deed and mortgage delivered pursuant to Section 5.01(j)the Lender Parties, in each case as amendedthat restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the General Partner, the “Mortgages”Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, the Capital Stock in the Borrower or any properties or other assets of any Loan Party or its Subsidiaries.
(g) The Borrower shall have paid all accrued fees of the Agents, the Joint Arrangers and assignments the Lender Parties and all reasonable expenses of leases the Agents (including the reasonable fees and rents expenses of Shearman & Sterling, counsel to the Agents) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in substantially the form Fee Letter.
(h) The Senior Notes shall have received long-term senior unsecured non-credit enhanced debt ratings of Exhibit J hereto at least BBB- from Fitch IBCA, Inc. and such rating shall remain in effect at the time of closing.
(together with each other assignment of leases i) The Borrower's and rents delivered pursuant to Section 5.01(j)its Subsidiaries' employee benefit plans shall be, in each case as amendedall material respects, funded in accordance with the “Assignments of Leases”minimum statutory requirements, (ii) (in each case with such changes as may be required to account for local law matters and otherwise satisfactory in form and substance to the Administrative Agent) covering all Borrowing Base Assets, duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages and Assignments of Leases have been duly executed, acknowledged and delivered on or before the day of the Initial Extension of Credit and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the collateral described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all required affidavits, tax forms and filings pertaining to any applicable documentary stamp, intangible and mortgage recordation taxes have been executed and delivered by all appropriate parties and are in form suitable for filing with all applicable governmental authorities,
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements (including zoning endorsements where available) and in amounts (not to exceed $85,000,000 in the aggregate) acceptable to the Administrative Agent, issued by title insurers acceptable to the Administrative Agent (it being acknowledged that First American Title Insurance Company is a title insurer acceptable to the Administrative Agent as of the Closing Date), insuring the Mortgages to be valid first and subsisting Liens in favor of the Collateral Agent on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances no "reportable event" (as defined in the Mortgages)ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liensiii) as the Administrative Agent may deem necessary no termination of, or desirable,
(C) American Land Title Association/American Congress on Surveying and Mapping form surveys for which all necessary fees have been paid, dated no more than 45 days before the date of their delivery to the Collateral Agent, certified to the Administrative Agent, the Collateral Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvementswithdrawal from, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines such employee benefit plan shall have occurred and other plottable dimensional regulations and the absence of encroachments, either by such improvements be continuing or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent,
(D) zoning reports as to the properties described in the Mortgages, in form and substance reasonably acceptable to the Administrative Agent and from Planning and Zoning Resources Corp. or another professional firm reasonably acceptable to the Administrative Agent, (E) engineering, soils, seismic, environmental and other similar reports as to the properties described in the Mortgages, in form and substance and from professional firms reasonably acceptable to the Administrative Agent,be contemplated.
Appears in 1 contract
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make an Advance or of any the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with the Initial Extension of Credit:
(a) The final terms and conditions of the Merger, including, without limitation, all legal and tax aspects thereof, shall be (i) as described in the Commitment Letter dated November 26, 1996 from Fleet to X.X. Childs and otherwise consistent in all material respects with the description thereof received in writing as part of the Pre-Commitment Information and (ii) otherwise reasonably satisfactory to the Lenders.
(b) The Merger Agreement shall be in full force and effect.
(c) The Additional Purchase shall have been consummated in all material respects in accordance with the Merger Agreement, without any waiver or amendment not consented to by the Lender Parties of any material term, provision or condition set forth therein, and in compliance with all applicable laws.
(d) The Lender Parties shall be satisfied in their reasonable discretion that the restrictions in Section 2.03 of the Delaware General Corporation Law are not applicable to the Merger or that any conditions to avoiding the restrictions contained therein have been satisfied.
(e) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries, including the terms and conditions of the charter, bylaws and each class of capital stock of each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization.
(f) The Lender Parties shall be satisfied with the terms and conditions of the equity (the "Equity") provided on or prior to the consummation of the Additional Purchase by the Equity Investors, consisting of not less than $65,000,000 of common and preferred equity (not less than $55,000,000 of which shall be common equity); and Holding shall have received at least $65,000,000 in gross cash proceeds from the Equity.
(g) The terms of the Stock Purchase Facilities shall be consistent with the terms of the Acquisition Financing Commitment Letter dated November 26, 1996 among NationsBank, NationsBanc Capital Markets, Inc. and X.X. Childs and shall otherwise be reasonably satisfactory to the Lender Parties; and the Purchaser shall have received sufficient gross cash proceeds from borrowings under the Stock Purchase Facilities to consummate the Additional Purchase.
(h) The Lender Parties shall be satisfied that all Existing Debt, other than the Debt of the Borrower set forth on Schedule XIV (the "Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished.
(i) Before giving effect to the Additional Purchase and the other transactions contemplated by this Agreement, there shall have occurred no Material Adverse Change since October 28, 1995.
(j) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule II (the "Disclosed Litigation") or (ii) purports to affect the legality, validity or enforceability of the Additional Purchase, the Merger, this Agreement, any Note, any other Loan Document, any Related Document or the consummation of the transactions contemplated hereby, and there shall have been no material adverse change in the status, or financial effect on the Borrower or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule II.
(k) The Lender Parties shall have been given such access to the management, records, books of account, contracts and properties of the Borrower and its Subsidiaries as they shall have requested and shall have received such financial business and other information regarding each of the foregoing Persons as they shall have reasonably requested.
(l) All governmental and third party consents and approvals necessary in connection with the Transaction and the Facilities shall have been obtained (without the imposition of any conditions that are not acceptable to the Lender Parties) and shall remain in effect; all applicable waiting periods shall have expired without any adverse action being taken by any competent authority; and no law or regulation shall be applicable in the reasonable judgment of the Lender Parties that restrains, prevents or imposes materially adverse conditions upon the Transaction or the Facilities.
(m) All of the information provided by or on behalf of X.X. Childs or by or on behalf of the Borrower to the Administrative Agent and the Lender Parties prior to their commitment in respect of the Facilities (the "Pre-Commitment Information") shall be true and correct in all material respects; and no additional information shall have come to the attention of the Administrative Agent or the Lender Parties that is inconsistent in any material respect with the Pre-Commitment Information or that could reasonably be expected to have a Material Adverse Effect.
(n) The Borrower shall have paid all accrued fees of the Administrative Agent and the Lender Parties.
(o) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent Lender Parties (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:
(i) A Note The Notes payable to the order of each Lender requesting the sameLenders.
(ii) Certified copies of the resolutions of the Board of Directors of the Borrower and each other Loan Party approving the Stock Purchase, Merger, this Agreement, the Notes, each other Loan Document and each Related Document to which it is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Stock Purchase, the Merger, this Agreement, the Notes, each other Loan Document and each Related Document.
(iii) A copy of the charter of the Borrower and each other Loan Party and each amendment thereto, certified (as of a date reasonably near the date of the Initial Extension of Credit) by the Secretary of State of the jurisdiction of its incorporation as being a true and correct copy thereof.
(iv) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation, dated reasonably near the date of the Initial Extension of Credit, listing the charter of the Borrower and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to the Borrower's or such other Loan Party's charter on file in his office, (B) the Borrower and each other Loan Party have paid all franchise taxes to the date of such certificate and (C) the Borrower and each other Loan Party are duly incorporated and in good standing under the laws of the State of the jurisdiction of its incorporation.
(v) A copy of a certificate of the Secretary of State of each of the State of Ohio and the State of Iowa, dated reasonably near the date of the Initial Extension of Credit, stating that the Borrower is duly qualified and in good standing as a foreign corporation in such State and has filed all annual reports required to be filed to the date of such certificate.
(vi) A certificate of the Borrower and each other Loan Party, signed on behalf of the Borrower and such other Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary, dated the date of the Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the charter of the Borrower or such other Loan Party since the date of the Secretary of State's certificate referred to in Section 3.01(m)(iii), (B) a true and correct copy of the bylaws of the Borrower and such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the due incorporation and good standing of the Borrower and such other Loan Party as a corporation organized under the laws of the State of Delaware, and the absence of any proceeding for the dissolution or liquidation of the Borrower, the Company or such other Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.
(vii) A certificate of the Secretary or an Assistant Secretary of the Borrower and each other Loan Party certifying the names and true signatures of the officers of the Borrower and such other Loan Party authorized to sign this Agreement, the Notes, each other Loan Document and each Related Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder.
(viii) A security agreement in substantially the form of Exhibit G hereto D (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(j5.01(p), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “"Security Agreement”"), duly executed by each Loan Party that owns Borrowing Base Assetsthe Borrower, together with:
(A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt referred to therein indorsed in blank,
(B) acknowledgment copies or stamped receipt copies of proper financing statements, duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral DocumentsSecurity Agreement, covering the Collateral described thereinin the Security Agreement,
(BC) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in the jurisdictions referred to in clause (AB) above and in such other jurisdictions specified by the Administrative Agent that name any Loan Party the Borrower as debtor, together with copies of such other financing statements,
(CD) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby,
(D) certificated Equity Interests in each direct and indirect Subsidiary that owns or leases a Borrowing Base Asset and stock powers and membership interest powers with respect thereto executed in blank, all in form and substance acceptable to the Administrative Agent,
(E) evidence of the insurance required by the terms of the Security Agreement,
(F) copies of the Assigned Agreements referred to in the Security Agreement, including, without limitation, each of the Hotel Management Agreements with respect to each Borrowing Base Asset and the Interstate Master Agreement, together with a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Loan Parties,
(G) certified copies of each management agreement and franchise agreement, and all amendments thereto, entered into on or before the Closing Date with respect to each Hotel Asset comprising a Borrowing Base Asset,
(H) certified copies of all leases (including, without limitation, all leases with Affiliates) and Material Contracts relating to each Borrowing Base Asset,
(I) a subordination agreement, in form and substance satisfactory to the Administrative Agent, executed and delivered by the manager of each Hotel Asset comprising a Borrowing Base Asset,
(J) a franchisor comfort letter in form and substance satisfactory to the Administrative Agent, executed and delivered by each franchisor of each Hotel Asset comprising a Borrowing Base AssetBorrower, and
(KG) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority Liens liens and security interests created under the Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters, UCC termination statements, account control agreements and landlords’ and bailees’ waiver and consent agreements)taken.
(iiiix) Deeds Certified copies of trusteach of the Related Documents in existence on such date, trust deeds duly executed by the parties thereto and mortgages in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith, in each case certified by a Responsible Officer.
(x) Certificates, in substantially the form of Exhibit H hereto G, attesting to the Solvency of each Loan Party after giving effect to the Additional Purchase and the other transactions contemplated hereby, from its chief financial officer.
(together xi) Evidence of insurance naming the Administrative Agent as insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties, including, without limitation, business interruption insurance.
(xii) Certified copies of each employment agreement and other compensation arrangement with each other deed executive officer of trust, trust deed any Loan Party or any of its Subsidiaries.
(xiii) Certified copies of all Material Contracts of each Loan Party and mortgage delivered pursuant to Section 5.01(j)its Subsidiaries, in each case as amendedcertified by a Responsible Officer.
(xiv) A Borrowing Base Certificate.
(xv) A favorable opinion of Xxxxxxxx & Worcester, counsel for the “Mortgages”) Purchaser and assignments of leases and rents Holding, in substantially the form of Exhibit J E hereto (together with each and as to such other assignment of leases and rents delivered pursuant to Section 5.01(j), in each case matter as amended, the “Assignments of Leases”) (in each case with such changes as may be required to account for local law matters and otherwise satisfactory in form and substance to the Administrative Agent) covering all Borrowing Base Assets, duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages and Assignments of Leases have been duly executed, acknowledged and delivered on or before the day of the Initial Extension of Credit and are in form suitable for filing or recording in all filing or recording offices that any Lender Party through the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the collateral described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all required affidavits, tax forms and filings pertaining to any applicable documentary stamp, intangible and mortgage recordation taxes have been executed and delivered by all appropriate parties and are in form suitable for filing with all applicable governmental authorities,reasonably request.
(Bxvi) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (A favorable opinion of Dickinson, Mackaman, Tyler & Xxxxx, P.C., local counsel to the “Mortgage Policies”) in form and substance, with endorsements (including zoning endorsements where available) and in amounts (not to exceed $85,000,000 Loan Parties in the aggregate) acceptable State of Iowa, in substantially the form of Exhibit F hereto and as to the Administrative Agent, issued by title insurers acceptable to the Administrative Agent (it being acknowledged that First American Title Insurance Company is a title insurer acceptable to the Administrative Agent as of the Closing Date), insuring the Mortgages to be valid first and subsisting Liens in favor of the Collateral Agent on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances (as defined in the Mortgages), and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) matters as any Lender Party through the Administrative Agent may deem necessary or desirable,reasonably request.
(Cxvii) American Land Title Association/American Congress on Surveying and Mapping form surveys A favorable opinion of Shearman & Sterling, counsel for which all necessary fees have been paid, dated no more than 45 days before the date of their delivery to the Collateral Agent, certified to the Administrative Agent, the Collateral Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other plottable dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent,
(D) zoning reports as to the properties described in the Mortgages, in form and substance reasonably acceptable to the Administrative Agent and from Planning and Zoning Resources Corp. or another professional firm reasonably acceptable satisfactory to the Administrative Agent, (E) engineering, soils, seismic, environmental and other similar reports as to the properties described in the Mortgages, in form and substance and from professional firms reasonably acceptable to the Administrative Agent,.
Appears in 1 contract
Samples: Credit Agreement (Central Tractor Farm & Country Inc)
