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 that has requested the same. (ii) [Intentionally Omitted]. (iii) As to each Unencumbered Asset: (A) [Intentionally Omitted], (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), (1) the most recently prepared land survey for such Unencumbered Asset, prepared by a land surveyor duly registered and licensed in the State in which the property described in such survey is located, 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 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 reasonably acceptable to the Administrative Agent and (2) a certificate of a Responsible Officer of the Borrower confirming that there have been no material changes to the dimensions or locations of the land or improvements shown in such survey since the date of such survey, (D) most recently prepared engineering, soils, seismic (for those Unencumbered Assets located in seismic zones 3 or 4), environmental and other similar reports as to the Unencumbered Assets, in form and substance and from professional firms reasonably acceptable to the Administrative Agent, (E) copies of all material licenses, permits and approvals, including, without limitation, any liquor license, innkeeper’s license and certificate of occupancy for each Unencumbered Asset, (F) certified copies of each Management Agreement, Franchise Agreement, and, to the extent applicable, Qualifying Ground Lease, in each case together with all amendments thereto, entered into with respect to each of the Unencumbered Assets, (G) copies of all leases (including, without limitation, all leases with Affiliates and Operating Leases) and Material Contracts relating to each of the Unencumbered Assets, and (iv) 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 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 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 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 (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 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) 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)(vi), (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)(v) 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) 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, 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 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 such amounts and covering such risks, as is satisfactory to the Lender Parties. (xii) An opinion of Kleinberg, Kaplan, Wxxxx & Cxxxx, P.C., New York counsel for the Loan Parties, with respect to the matters (and in 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 reasonably request. (xiii) An opinion of local counsel for the Loan Parties (A) from Hunton & Wxxxxxxx LLP, in substantially the form of Exhibit F-2 hereto, (B) from Vxxxxxx LLP in substantially the form of Exhibit F-3 hereto, and (C) from Hxxxx, Xxxxx & Axxxxx, LLP in substantially 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 or Notice of Issuance, as applicable, 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. (xvi) A breakage indemnity letter agreement executed by the Borrower in form and substance satisfactory to the Administrative Agent and dated and delivered to the Administrative Agent at least three (3) Business Days prior to the Closing Date. (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, 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 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 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 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, out-of-pocket expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent). (i) The Existing Credit Agreement shall have been, or substantially simultaneously with the effectiveness hereof shall be, terminated and all Obligations thereunder paid in full.

Appears in 1 contract

Samples: Credit Agreement (Summit Hotel Properties, Inc.)

Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make an ~~Advance~~ Advance, of the Existing 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 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 that has requested the same. (ii) ~~[Intentionally Omitted]~~Completed requests for information dated a recent date, including UCC, judgment, tax, litigation and bankruptcy searches with respect to each applicable Loan Party, and, in the case of UCC searches, listing all effective financing statements filed in the jurisdictions specified by the Administrative Agent that name any Loan Party as debtor, together with copies of such financing statements. (iii) This Agreement, duly executed by the Loan Parties and the other parties thereto. (iv) An Appraisal of each Borrowing Base Asset listed on Part A of Schedule II which is designated as a Recently Developed Asset or a Recently Redeveloped Asset, (v) As to each ~~Unencumbered~~ Borrowing Base Asset: (A) [Intentionally Omitted], (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), (1) the most recently prepared land survey ~~for~~ of such ~~Unencumbered~~ Borrowing Base Asset, prepared by a duly licensed and registered land ~~surveyor duly registered and licensed in the State in which the property described in such survey is located~~surveyor, 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 dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than (i) Permitted Liens and (ii) encroachments and other defects that do not materially and adversely affect the value or operation of such property or are reasonably acceptable to the Administrative Agent, 74 (B) certified copies of each Management Agreement and Franchise Agreement, Qualified Ground Lease, Material Contracts, and all amendments thereto, entered into with respect to such Borrowing Base Asset, (C) an original of the Existing Qualified Mortgage and the related Existing Qualified Note made in connection with such Borrowing Base Asset, if applicable, together with any other items required pursuant to Section 8.01, (D) a copy of an ALTA Owner’s Policy of Title Insurance of the Borrower or a Subsidiary thereof, as applicable, covering such Borrowing Base Asset showing the identity of the fee titleholder thereto and all matters of record as of the date of such policy, and (E) (1) a “Phase I” environmental assessment of such Borrowing Base Asset, which report (i) has been prepared by an environmental engineering firm reasonably acceptable to the Administrative Agent and (ii) is otherwise in form and substance reasonably acceptable to the Administrative Agent and (2) ~~a certificate of a Responsible Officer of the Borrower confirming that there have been no material changes to the dimensions~~ any other environmental assessments or locations of the land or improvements shown in such survey since the date of such survey, (D) most recently prepared engineering, soils, seismic (for those Unencumbered Assets located in seismic zones 3 or 4), environmental and other similar reports as relating to such Borrowing Base Asset, including any “Phase II” environmental assessment prepared or recommended by such environmental engineering firm to be prepared for such Borrowing Base Asset. For the ~~Unencumbered Assets~~avoidance of doubt, ~~in form and substance and from professional firms reasonably acceptable~~ the parties hereby acknowledge that the items required to be delivered to the Administrative ~~Agent,~~Agent pursuant to this Section 3.01(a)(v) shall not be required for the Borrowing Base Assets listed on Part A of Schedule II (not indicated with an asterisk) which qualify as Borrowing Base Assets (under and as defined in the loan documentation for the Other Facilities) immediately prior to the Effective Date. (E) copies of all material licenses, permits and approvals, including, without limitation, any liquor license, innkeeper’s license and certificate of occupancy for each Unencumbered Asset, (F) certified copies of each Management Agreement, Franchise Agreement, and, to the extent applicable, Qualifying Ground Lease, in each case together with all amendments thereto, entered into with respect to each of the Unencumbered Assets, (G) copies of all leases (including, without limitation, all leases with Affiliates and Operating Leases) and Material Contracts relating to each of the Unencumbered Assets, and (iv) This Agreement duly executed by the Loan Parties and the other parties hereto. (vvi) 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 ~~party (the “Closing Authorizing Resolution”)~~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 transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party. (vivii) 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 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 75 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 (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~~viii) 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,~~ Party 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~~ix) 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,~~ Party by its ~~President,~~ President or a Vice ~~President, Executive Chairman or Chief Manager~~ President 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) the absence of any amendments to the constitutive documents of such Loan ~~Party,~~ Party and its general partner or managing member, as applicable, since the date of the certificate referred to in Section 3.01(a)(vi), (B) a true and correct copy of the bylaws, operating agreement, partnership agreement or other governing document of such Loan ~~Party,~~ Party and its 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 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,~~ Party and its 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,~~ Party and its 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. (ixx) 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 and of the general partner or managing member of such Loan Party, as applicable, authorized to sign each Loan Document to which it such Loan Party is or is to be a party and the other documents to be delivered hereunder and thereunder. (xxi) 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~~2016, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available ~~and for~~ (or, in the ~~nine months then ended~~ 76 event the Lender Parties’ due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the day of the Initial Extension of Credit) and financial projections for the Parent Guarantor’s consolidated operations. (xixii) Evidence of that all insurance ~~(which may consist of binders or certificates of insurance) with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory~~ required to be maintained pursuant to the ~~Lender Parties~~Loan Documents has been obtained and is in effect. (~~xii~~xiii) An opinion of ~~Kleinberg~~Hunton & Xxxxxxxx LLP, ~~Kaplan, Wxxxx & Cxxxx, P.C., New York~~ special counsel for the Loan Parties, with respect to ~~the~~ such matters (and in 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 reasonably request. (xiii) An opinion of local counsel for the Loan Parties (A) from Hunton & Wxxxxxxx LLP, in substantially the form of Exhibit F-2 hereto, (B) from Vxxxxxx LLP in substantially the form of Exhibit F-3 hereto, and (C) from Hxxxx, Xxxxx & Axxxxx, LLP in substantially 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~~ An opinion of counsel for the Loan Parties reasonably satisfactory to the Administrative Agent covering certain corporate formalities and other matters that the Administrative Agent on behalf of the Lender Parties may reasonably request. (xv) An opinion of Shearman & Sterling LLP, counsel for the Administrative Agent, in form and substance satisfactory to the Administrative Agent. (xvi) One or more Notices of Borrowing or a Notice of Issuance, as applicable, relating to the Initial Extension of ~~Credit and~~ Credit, each dated and delivered ~~not less than~~ to the Administrative Agent at least three (3) Business Days prior to the ~~date of the Initial Extension of Credit~~Closing Date. (xvxvii) 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~~ 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. (xvi) A breakage indemnity letter agreement executed by the Borrower in form and substance satisfactory to the Administrative Agent and dated and delivered to the Administrative Agent at least three (3) Business Days prior to the Closing Date. (b) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its ~~Subsidiaries~~Subsidiaries that directly or indirectly owns a Borrowing Base Asset, 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, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving 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~~ Material Adverse Change since December 31, ~~2014~~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 “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 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, out-of-pocket expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent). (i) The Existing Credit Agreement shall have been, or substantially simultaneously with the effectiveness hereof shall be, terminated and all Obligations thereunder paid in full.

Appears in 1 contract

Samples: Credit Agreement (Hersha Hospitality Trust)

Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make an ~~Advance~~ Advance, of the Existing 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 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 that has requested the same. (ii) ~~[Intentionally Omitted]~~Completed requests for information dated a recent date, including UCC, judgment, tax, litigation and bankruptcy searches with respect to each applicable Loan Party, and, in the case of UCC searches, listing all effective financing statements filed in the jurisdictions specified by the Administrative Agent that name any Loan Party as debtor, together with copies of such financing statements. (iii) This Agreement, duly executed by the Loan Parties and the other parties thereto. (iv) An Appraisal of each Borrowing Base Asset listed on Part A of Schedule II which is designated as a Recently Developed Asset or a Recently Redeveloped Asset, (v) As to each ~~Unencumbered~~ Borrowing Base Asset: (A) [Intentionally Omitted], (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), (1) the most recently prepared land survey ~~for~~ of such ~~Unencumbered~~ Borrowing Base Asset, prepared by a duly licensed and registered land ~~surveyor duly registered and licensed in the State in which the property described in such survey is located~~surveyor, 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 dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than (i) Permitted Liens and (ii) encroachments and other defects that do not materially and 65 (B) certified copies of each Management Agreement and Franchise Agreement, Qualified Ground Lease, Material Contracts, and all amendments thereto, entered into with respect to such Borrowing Base Asset, (C) an original of the Existing New York Mortgage and the related Existing New York Note made in connection with such Borrowing Base Asset, if applicable, together with any other items required pursuant to Section 8.01, (D) a copy of an ALTA Owner’s Policy of Title Insurance of the Borrower or a Subsidiary thereof, as applicable, covering such Borrowing Base Asset showing the identity of the fee titleholder thereto and all matters of record as of the date of such policy, and (E) (1) a “Phase I” environmental assessment of such Borrowing Base Asset, which report (i) has been prepared by an environmental engineering firm reasonably acceptable to the Administrative Agent and (ii) is otherwise in form and substance reasonably acceptable to the Administrative Agent and (2) ~~a certificate of a Responsible Officer of the Borrower confirming that there have been no material changes to the dimensions~~ any other environmental assessments or locations of the land or improvements shown in such survey since the date of such survey, (D) most recently prepared engineering, soils, seismic (for those Unencumbered Assets located in seismic zones 3 or 4), environmental and other similar reports as relating to such Borrowing Base Asset, including any “Phase II” environmental assessment prepared or recommended by such environmental engineering firm to be prepared for such Borrowing Base Asset. For the ~~Unencumbered Assets~~avoidance of doubt, ~~in form and substance and from professional firms reasonably acceptable~~ the parties hereby acknowledge that the items required to be delivered to the Administrative ~~Agent,~~ Agent pursuant to this Section 3.01(a)(v) shall not be required for the Borrowing Base Assets listed on Part A of Schedule II (Enot indicated with an asterisk) ~~copies of all material licenses, permits~~ which qualify as Borrowing Base Assets (under and ~~approvals, including, without limitation, any liquor license, innkeeper’s license and certificate of occupancy for each Unencumbered Asset, (F~~as defined in the Existing Agreement) ~~certified copies of each Management Agreement, Franchise Agreement, and,~~ immediately prior to the extent applicable, Qualifying Ground Lease, in each case together with all amendments thereto, entered into with respect to each of the Unencumbered Assets, (G) copies of all leases (including, without limitation, all leases with Affiliates and Operating Leases) and Material Contracts relating to each of the Unencumbered Assets, and (iv) This Agreement duly executed by the Loan Parties and the other parties heretoEffective Date. (vvi) 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 ~~party (the “Closing Authorizing Resolution”)~~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 transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party. (vivii) 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 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 (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~~viii) 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,~~ Party 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~~ix) 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,~~ Party by its ~~President,~~ President or a Vice ~~President, Executive Chairman or Chief Manager~~ President 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) the absence of any amendments to the constitutive documents of such Loan ~~Party,~~ Party and its general partner or managing member, as applicable, since the date of the certificate referred to in Section 3.01(a)(vi), (B) a true and correct copy of the bylaws, operating agreement, partnership agreement or other governing document of such Loan ~~Party,~~ Party and its 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 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,~~ Party and its 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,~~ Party and its 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. (ixx) 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 and of the general partner or managing member of such Loan Party, as applicable, authorized to sign each Loan Document to which it such Loan Party is or is to be a party and the other documents to be delivered hereunder and thereunder. (xxi) 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~~2012, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available ~~and for~~ (or, in the ~~nine months then ended~~ event the Lender Parties’ due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the day of the Initial Extension of Credit) and financial projections for the Parent Guarantor’s consolidated operations. (xixii) Evidence of that all insurance ~~(which may consist of binders or certificates of insurance) with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory~~ required to be maintained pursuant to the ~~Lender Parties~~Loan Documents has been obtained and is in effect. (~~xii~~xiii) An opinion of ~~Kleinberg~~Hunton & Xxxxxxxx LLP, ~~Kaplan, Wxxxx & Cxxxx, P.C., New York~~ special counsel for the Loan Parties, with respect to ~~the~~ such matters (and in 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 reasonably request. (xiii) An opinion of local counsel for the Loan Parties (A) from Hunton & Wxxxxxxx LLP, in substantially the form of Exhibit F-2 hereto, (B) from Vxxxxxx LLP in substantially the form of Exhibit F-3 hereto, and (C) from Hxxxx, Xxxxx & Axxxxx, LLP in substantially 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~~ An opinion of counsel for the Loan Parties reasonably satisfactory to the Administrative Agent covering certain corporate formalities and other matters that the Administrative Agent on behalf of the Lender Parties may reasonably request. (xv) An opinion of Shearman & Sterling LLP, counsel for the Administrative Agent, in form and substance satisfactory to the Administrative Agent. (xvi) One or more Notices of Borrowing or a Notice of Issuance, as applicable, relating to the Initial Extension of ~~Credit and~~ Credit, each dated and delivered ~~not less than~~ to the Administrative Agent at least three (3) Business Days prior to the ~~date of the Initial Extension of Credit~~Closing Date. (xvxvii) 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~~ 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. (xvi) A breakage indemnity letter agreement executed by the Borrower in form and substance satisfactory to the Administrative Agent and dated and delivered to the Administrative Agent at least three (3) Business Days prior to the Closing Date. (b) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its ~~Subsidiaries~~Subsidiaries that directly or indirectly owns a Borrowing Base Asset, 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, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving 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~~ Material Adverse Change since December 31, ~~2014~~2012. (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 “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 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, out-of-pocket expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent). (i) The Existing Credit Agreement shall have been, or substantially simultaneously with the effectiveness hereof shall be, terminated and all Obligations thereunder paid in full.

Appears in 1 contract

Samples: Credit Agreement (Hersha Hospitality Trust)

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 that has requested the same. (ii) ~~[Intentionally Omitted]. (iii)~~ As to each ~~Unencumbered~~ Borrowing Base Asset: (A) ~~[Intentionally Omitted]~~a current record owner and lien search performed by a title insurer acceptable to the Administrative Agent showing that the applicable Loan Party identified in Schedule II is the current record title holder of such Borrowing Base Asset and showing no Liens of record other than Permitted Liens, (B) evidence satisfactory to the Administrative Agent that the applicable owner or lessee, as applicable, of such ~~Unencumbered~~ Borrowing Base Asset shall ~~be in compliance~~ have complied with the ~~requirements of Section 5.02(p),~~Subsidiary Guarantor Requirements, and (1) the most recently prepared land survey for such ~~Unencumbered~~ Borrowing Base Asset, prepared by a land surveyor duly registered and licensed in the State in which the property described in such survey is located, 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 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 reasonably acceptable to the Administrative Agent and (2) a certificate of a Responsible Officer of the Borrower confirming that there have been no material changes to the dimensions or locations of the land or improvements shown in such survey since the date of such survey, (D) ~~most recently prepared~~ engineering, soils, seismic (for those ~~Unencumbered~~ Borrowing Base Assets located in seismic zones 3 or 4), environmental and other similar reports as to the ~~Unencumbered~~ Borrowing Base Assets, in form and substance and from professional firms reasonably acceptable to the Administrative Agent, (E) copies of all material licenses, permits and approvals, including, without limitation, any liquor license, innkeeper’s license and certificate of occupancy for each ~~Unencumbered~~ Borrowing Base Asset, (F) a zoning report for each Borrowing Base Asset located in a State in which a zoning endorsement is not available, issued by Planning and Zoning Resources Corp. or another professional firm reasonably acceptable to the Administrative Agent, (G) an Acceptable Appraisal of each Borrowing Base Asset, dated no less than 15 days prior to the Closing Date, (H) certified copies of each Management ~~Agreement,~~ Agreement and Franchise Agreement, ~~and, to the extent applicable,~~ Qualifying Ground ~~Lease, in each case together with~~ Lease and all amendments thereto, entered into with respect to each of the ~~Unencumbered~~ Borrowing Base Assets, (GI) certified copies of all leases (including, without limitation, all leases with Affiliates and Operating Leases) and Material Contracts relating to each of the ~~Unencumbered~~ Borrowing Base Assets, and (J) copies of all Liens on each of the Borrowing Base Assets, including, without limitation, any reciprocal easement agreements, easements and other items of record. (iii) Completed requests for information dated a recent date, including UCC, judgment, tax, litigation and bankruptcy searches with respect to each applicable Loan Party, and, in the case of UCC searches, listing all effective financing statements filed in the jurisdictions specified by the Administrative Agent that name any Loan Party as debtor, together with copies of such financing statements, (iv) This Agreement duly executed by the Loan Parties and the other parties ~~hereto~~thereto. (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 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 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 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 (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 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) 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)(vi), (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)(v) 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) 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 and the Predecessor 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~~ 2010 of the ~~Parent Guarantor~~Predecessor, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available ~~and for~~ (or, in the ~~nine months then ended~~ event the Lender Parties’ due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the day of the Initial Extension of Credit) and financial projections for the Parent Guarantor’s consolidated operations. (xi) Evidence of insurance (which may consist of binders or certificates of insurance) naming the Administrative Agent as loss payee and additional insured with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties. (xii) An opinion of Kleinberg, Kaplan, ~~Wxxxx~~ Xxxxx & ~~Cxxxx~~Xxxxx, P.C., New York counsel for the Loan Parties, with respect to the matters (and in substantially the form) set forth in Exhibit ~~F-1~~ E-1 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request. (xiii) An opinion of local counsel for the Loan Parties (A) ~~from Hunton & Wxxxxxxx LLP~~in Delaware and in any other states in which the Loan Parties are organized or formed, in substantially the form of Exhibit ~~F-2~~ E-2 hereto, (B) ~~from Vxxxxxx LLP~~ in Maryland in substantially the form of Exhibit ~~F-3~~ E-3 hereto, and (C) from ~~Hxxxx~~Xxxxx, Xxxxx & ~~Axxxxx~~Xxxxxx, LLP in substantially the form of Exhibit ~~F-4~~ E-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 or Notice of Issuance, as applicable, 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. (xvi) A breakage indemnity letter agreement executed by the Borrower in form and substance satisfactory to the Administrative Agent and dated and delivered to the Administrative Agent at least three (3) Business Days prior to the Closing Date. (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 or the Predecessor since December 31, ~~2014~~2010. (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 “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)~~ Subsidiary Guarantor Requirements 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, out-of-pocket expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent). ~~(i) The Existing Credit Agreement shall have been, or substantially simultaneously with the effectiveness hereof shall be, terminated and all Obligations thereunder paid in full.~~

Appears in 1 contract

Samples: Credit Agreement (Summit Hotel 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 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 ~~that has requested~~ requesting the same. (ii) ~~[Intentionally Omitted]. (iii)~~ As to each Unencumbered Pool Asset: (A) ~~[Intentionally Omitted]~~a current record owner and lien search performed by a title insurer acceptable to the Administrative Agent showing that the applicable Loan Party identified in Schedule II is the current record title holder of such Unencumbered Pool Asset and showing no Liens of record other than Permitted Liens, (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),~~ (1) the most recently prepared land survey ~~for~~ of such Unencumbered Pool Asset, prepared by a duly licensed and registered land ~~surveyor duly registered and licensed in the State in which the property described in such survey is located~~surveyor, 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 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 ~~reasonably~~ acceptable to the Administrative ~~Agent~~ Agent, and (2) a certificate of a Responsible Officer of the Borrower confirming that there have been no material changes to the dimensions or locations of the land or improvements shown in such land survey since the date of such land survey, (C) certified copies of each management agreement and franchise agreement, and all amendments thereto, with respect to such Unencumbered Pool Asset, (D) ~~most recently prepared engineering, soils, seismic (for those Unencumbered Assets located in seismic zones 3 or 4~~evidence of the insurance required by Section 5.01(d), ~~environmental and other similar reports as to the Unencumbered Assets, in form and substance and from professional firms reasonably acceptable to the Administrative Agent,~~and (E) ~~copies of all material licenses, permits and approvals, including, without limitation, any liquor license, innkeeper’s license and certificate of occupancy~~ a capital plan for ~~each~~ such Unencumbered Pool Asset, (F) certified copies of each Management Agreement, Franchise Agreement, and, to the extent applicable, Qualifying Ground Lease, in each case together with all amendments thereto, entered into with respect to each of the Unencumbered Assets, (G) copies of all leases (including, without limitation, all leases with Affiliates and Operating Leases) and Material Contracts relating to each of the Unencumbered Assets, and (iv) This Agreement duly executed by the Loan Parties and the other parties hereto. (viii) Certified copies of the resolutions of the Board of ~~Directors of the Parent Guarantor on its behalf and on behalf~~ Directors, general partner or managing member, as applicable, of each Loan Party ~~for which it is the ultimate signatory~~ 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 ~~or such Loan Party~~ is or is to be a ~~party (the “Closing Authorizing Resolution”)~~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 transactions under the Loan Documents and each Loan Document to which it ~~or such Loan Party~~ is or is to be a party. (viiv) 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,~~ 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,~~ office and (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 (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~~v) 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~~ would not be reasonably ~~be expected~~ likely to ~~result in~~ have 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~~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 managing member, as applicable, by its ~~President,~~ President or a Vice ~~President, Executive Chairman or Chief Manager~~ President 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) 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)(vi~~3.01(a)(iv), (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)(v~~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 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 truth in all material 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 and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default. (ixvii) 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. (xviii) 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~~2005, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available ~~and for~~ (or, in the ~~nine months then ended and~~ event the Lender Parties’ due diligence review reveals material changes since such financial ~~projections for~~ statements, as of a later date within 45 days of the ~~Parent Guarantor’s consolidated operations~~day of the Initial Extension of Credit). (xiix) Evidence of insurance ~~(which may consist of binders or certificates of insurance)~~ with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties. (~~xii~~x) An opinion of ~~Kleinberg~~Xxxxxx, ~~Kaplan~~Xxxx & Xxxxxxxx LLP, ~~Wxxxx & Cxxxx, P.C., New York~~ counsel for the Loan Parties, ~~with respect to the matters (and~~ in substantially the ~~form) set forth in~~ form of Exhibit ~~F-1~~ E-1 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request. (~~xiii~~xi) An opinion of ~~local~~ Xxxxxxx LLP, Maryland counsel for the Loan ~~Parties (A) from Hunton & Wxxxxxxx LLP~~Parties, in substantially the form of Exhibit ~~F-2 hereto, (B) from Vxxxxxx LLP in substantially the form of Exhibit F-3 hereto,~~ E-2 hereto and ~~(C) from Hxxxx, Xxxxx & Axxxxx, LLP in substantially the form of Exhibit F-4 hereto, in each case covering~~ as to such other matters as any Lender Party through the Administrative Agent may reasonably request. (xii) [Intentionally omitted]. (xiii) An opinion of Shearman & Sterling LLP, counsel for the Administrative Agent, in form and substance satisfactory to the Administrative Agent. (xiv) A Notice of Borrowing or Notice of Issuance, as applicable, and an Unencumbered Pool Certificate 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. (xvi) A breakage indemnity letter agreement executed by the Borrower in form and substance satisfactory to the Administrative Agent and dated and delivered to the Administrative Agent at least three (3) Business Days prior to the Closing Date. (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, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished (including all Debt under the Existing Credit Facility other than the Existing Letters of Credit) and that all Surviving 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~~ Material Adverse Change since December 31, ~~2014~~2005. (e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or or, to Borrower’s knowledge, threatened before any court, governmental agency or arbitrator that (i) ~~could~~ would be reasonably ~~be expected~~ likely to ~~result in~~ have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “~~Material~~ Disclosed 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~~ Disclosed 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~~ The Borrower shall have ~~complied with~~ entered into the ~~requirements of~~ Hedge Agreements required under Section ~~5.02(p~~5.01(n) ~~and provided evidence of~~ if any are required by such ~~compliance satisfactory to the Administrative Agent~~Section. (h) 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, subject to the terms of the Fee Letter). ~~(i) The Existing Credit Agreement shall have been, or substantially simultaneously with the effectiveness hereof shall be, terminated and all Obligations thereunder paid in full.~~

Appears in 1 contract

Samples: Revolving Credit Agreement (Sunstone Hotel Investors, 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 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 that has requested the same. (ii) ~~[Intentionally Omitted]~~Completed requests for information dated a recent date, including UCC, judgment, tax, litigation and bankruptcy searches with respect to each applicable Loan Party, and, in the case of UCC searches, listing all effective financing statements filed in the jurisdictions specified by the Administrative Agent that name any Loan Party as debtor, together with copies of such financing statements. (iii) This Agreement, duly executed by the Loan Parties and the other parties thereto. (iv) An Appraisal of each Borrowing Base Asset listed on Part A of Schedule II which is designated as a Recently Developed Asset or a Recently Redeveloped Asset, (v) As to each ~~Unencumbered~~ Borrowing Base Asset: (A) [Intentionally Omitted], (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), (1) the most recently prepared land survey ~~for~~ of such ~~Unencumbered~~ Borrowing Base Asset, prepared by a duly licensed and registered land ~~surveyor duly registered and licensed in the State in which the property described in such survey is located~~surveyor, 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 dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than (i) Permitted Liens and (ii) encroachments and other defects that do not materially and adversely affect the value or operation of such property or are reasonably acceptable to the Administrative Agent, (B) certified copies of each Management Agreement and Franchise Agreement, Qualified Ground Lease, Material Contracts, and all amendments thereto, entered into with respect to such Borrowing Base Asset, (C) an original of the Existing New York Mortgage and the related Existing New York Note made in connection with such Borrowing Base Asset, if applicable, together with any other items required pursuant to Section 8.01, (D) a copy of an ALTA Owner’s Policy of Title Insurance of the Borrower or a Subsidiary thereof, as applicable, covering such Borrowing Base Asset showing the identity of the fee titleholder thereto and all matters of record as of the date of such policy, and (1) a “Phase I” environmental assessment of such Borrowing Base Asset, which report (i) has been prepared by an environmental engineering firm reasonably acceptable to the Administrative Agent and (ii) is otherwise in form and substance reasonably acceptable to the Administrative Agent and (2) ~~a certificate of a Responsible Officer of the Borrower confirming that there have been no material changes to the dimensions~~ any other environmental assessments or locations of the land or improvements shown in such survey since the date of such survey, (D) most recently prepared engineering, soils, seismic (for those Unencumbered Assets located in seismic zones 3 or 4), environmental and other similar reports as to the Unencumbered Assets, in form and substance and from professional firms reasonably acceptable to the Administrative Agent, (E) copies of all material licenses, permits and approvals, including, without limitation, any liquor license, innkeeper’s license and certificate of occupancy for each Unencumbered Asset, (F) certified copies of each Management Agreement, Franchise Agreement, and, to the extent applicable, Qualifying Ground Lease, in each case together with all amendments thereto, entered into with respect to each of the Unencumbered Assets, (G) copies of all leases (including, without limitation, all leases with Affiliates and Operating Leases) and Material Contracts relating to ~~each of the Unencumbered Assets~~such Borrowing Base Asset, ~~and (iv) This Agreement duly executed~~ including any “Phase II” environmental assessment prepared or recommended by ~~the Loan Parties and the other parties hereto~~such environmental engineering firm to be prepared for such Borrowing Base Asset. (vvi) 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 ~~party (the “Closing Authorizing Resolution”)~~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 transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party. (vivii) 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 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 (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~~viii) 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,~~ Party 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~~ix) 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,~~ Party by its ~~President,~~ President or a Vice ~~President, Executive Chairman or Chief Manager~~ President 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) the absence of any amendments to the constitutive documents of such Loan ~~Party,~~ Party and its general partner or managing member, as applicable, since the date of the certificate referred to in Section 3.01(a)(vi), (B) a true and correct copy of the bylaws, operating agreement, partnership agreement or other governing document of such Loan ~~Party,~~ Party and its 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 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,~~ Party and its 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,~~ Party and its 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. (ixx) 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 and of the general partner or managing member of such Loan Party, as applicable, authorized to sign each Loan Document to which it such Loan Party is or is to be a party and the other documents to be delivered hereunder and thereunder. (xxi) 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~~2011, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available ~~and for~~ (or, in the ~~nine months then ended~~ event the Lender Parties’ due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the day of the Initial Extension of Credit) and financial projections for the Parent Guarantor’s consolidated operations. (xixii) Evidence of that all insurance ~~(which may consist of binders or certificates of insurance) with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory~~ required to be maintained pursuant to the ~~Lender Parties~~Loan Documents has been obtained and is in effect. (~~xii~~xiii) An opinion of ~~Kleinberg~~Hunton & Xxxxxxxx LLP, ~~Kaplan, Wxxxx & Cxxxx, P.C., New York~~ special counsel for the Loan Parties, with respect to ~~the~~ such matters (and in 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 reasonably request. (xiii) An opinion of local counsel for the Loan Parties (A) from Hunton & Wxxxxxxx LLP, in substantially the form of Exhibit F-2 hereto, (B) from Vxxxxxx LLP in substantially the form of Exhibit F-3 hereto, and (C) from Hxxxx, Xxxxx & Axxxxx, LLP in substantially 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~~ An opinion of counsel for the Loan Parties reasonably satisfactory to the Administrative Agent covering certain corporate formalities and other matters that the Administrative Agent on behalf of the Lender Parties may reasonably request. (xv) An opinion of Shearman & Sterling LLP, counsel for the Administrative Agent, in form and substance satisfactory to the Administrative Agent. (xvi) One or more Notices of Borrowing or a Notice of Issuance, as applicable, relating to the Initial Extension of ~~Credit and~~ Credit, each dated and delivered ~~not less than~~ to the Administrative Agent at least three (3) Business Days prior to the ~~date of the Initial Extension of Credit~~Closing Date. (xvxvii) 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~~ 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. (xvi) A breakage indemnity letter agreement executed by the Borrower in form and substance satisfactory to the Administrative Agent and dated and delivered to the Administrative Agent at least three (3) Business Days prior to the Closing Date. (b) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its ~~Subsidiaries~~Subsidiaries that directly or indirectly owns a Borrowing Base Asset, 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, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving 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~~ Material Adverse Change since December 31, ~~2014~~2011. (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 “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~~ The Administrative Agent shall have ~~complied with~~ received a breakage indemnity letter agreement executed by the ~~requirements of Section 5.02(p)~~ Borrower and ~~provided evidence of such compliance~~ the Parent Guarantor in form and substance satisfactory to the Administrative ~~Agent~~Agent and dated and delivered to the Administrative Agent at least three (3) Business Days prior to the Closing Date. (h) 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). ~~(i) The Existing Credit Agreement shall have been, or substantially simultaneously with the effectiveness hereof shall be, terminated and all Obligations thereunder paid in full.~~

Appears in 1 contract

Samples: Credit Agreement (Hersha Hospitality Trust)

Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make an ~~Advance~~ Advance, of the Existing 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 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 that has requested the same. (ii) ~~[Intentionally Omitted]~~Completed requests for information dated a recent date, including UCC, judgment, tax, litigation and bankruptcy searches with respect to each applicable Loan Party, and, in the case of UCC searches, listing all effective financing statements filed in the jurisdictions specified by the Administrative Agent that name any Loan Party as debtor, together with copies of such financing statements. (iii) This Agreement, duly executed by the Loan Parties and the other parties thereto. (iv) An Appraisal of each Borrowing Base Asset listed on Part A of Schedule II which is designated as a Recently Developed Asset or a Recently Redeveloped Asset, (v) As to each ~~Unencumbered~~ Borrowing Base Asset: (A) [Intentionally Omitted], (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), (1) the most recently prepared land survey ~~for~~ of such ~~Unencumbered~~ Borrowing Base Asset, prepared by a duly licensed and registered land ~~surveyor duly registered and licensed in the State in which the property described in such survey is located~~surveyor, 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 dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than (i) Permitted Liens and (ii) encroachments and other defects that do not materially and adversely affect the value or operation of such property or are reasonably acceptable to the Administrative Agent, (B) certified copies of each Management Agreement and Franchise Agreement, Qualified Ground Lease, Material Contracts, and all amendments thereto, entered into with respect to such Borrowing Base Asset, (C) an original of the Existing Qualified Mortgage and the related Existing Qualified Note made in connection with such Borrowing Base Asset, if applicable, together with any other items required pursuant to Section 8.01, (D) a copy of an ALTA Owner’s Policy of Title Insurance of the Borrower or a Subsidiary thereof, as applicable, covering such Borrowing Base Asset showing the identity of the fee titleholder thereto and all matters of record as of the date of such policy, and (E) (1) a “Phase I” environmental assessment of such Borrowing Base Asset, which report (i) has been prepared by an environmental engineering firm reasonably acceptable to the Administrative Agent and (ii) is otherwise in form and substance reasonably acceptable to the Administrative Agent and (2) ~~a certificate of a Responsible Officer of the Borrower confirming that there have been no material changes to the dimensions~~ any other environmental assessments or locations of the land or improvements shown in such survey since the date of such survey, (D) most recently prepared engineering, soils, seismic (for those Unencumbered Assets located in seismic zones 3 or 4), environmental and other similar reports as relating to such Borrowing Base Asset, including any “Phase II” environmental assessment prepared or recommended by such environmental engineering firm to be prepared for such Borrowing Base Asset. For the ~~Unencumbered Assets~~avoidance of doubt, ~~in form and substance and from professional firms reasonably acceptable~~ the parties hereby acknowledge that the items required to be delivered to the Administrative ~~Agent,~~Agent pursuant to this Section 3.01(a)(v) shall not be required for the Borrowing Base Assets listed on Part A of Schedule II (not indicated with an asterisk) which qualify as Borrowing Base Assets (under and as defined in the Existing Agreementloan documentation for the Other Facilities) immediately prior to the Effective Date. (E) copies of all material licenses, permits and approvals, including, without limitation, any liquor license, innkeeper’s license and certificate of occupancy for each Unencumbered Asset, (F) certified copies of each Management Agreement, Franchise Agreement, and, to the extent applicable, Qualifying Ground Lease, in each case together with all amendments thereto, entered into with respect to each of the Unencumbered Assets, (G) copies of all leases (including, without limitation, all leases with Affiliates and Operating Leases) and Material Contracts relating to each of the Unencumbered Assets, and (iv) This Agreement duly executed by the Loan Parties and the other parties hereto. (vvi) 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 ~~party (the “Closing Authorizing Resolution”)~~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 transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party. (vivii) 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 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 (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~~viii) 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,~~ Party 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~~ix) 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,~~ Party by its ~~President,~~ President or a Vice ~~President, Executive Chairman or Chief Manager~~ President 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) the absence of any amendments to the constitutive documents of such Loan ~~Party,~~ Party and its general partner or managing member, as applicable, since the date of the certificate referred to in Section 3.01(a)(vi), (B) a true and correct copy of the bylaws, operating agreement, partnership agreement or other governing document of such Loan ~~Party,~~ Party and its 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 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,~~ Party and its 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,~~ Party and its 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. (ixx) 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 and of the general partner or managing member of such Loan Party, as applicable, authorized to sign each Loan Document to which it such Loan Party is or is to be a party and the other documents to be delivered hereunder and thereunder. (xxi) 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~~2012, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available ~~and for~~ (or, in the ~~nine months then ended~~ event the Lender Parties’ due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the day of the Initial Extension of Credit) and financial projections for the Parent Guarantor’s consolidated operations. (xixii) Evidence of that all insurance ~~(which may consist of binders or certificates of insurance) with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory~~ required to be maintained pursuant to the ~~Lender Parties.~~Loan Documents has been obtained and is in effect. 80 (~~xii~~xiii) An opinion of ~~Kleinberg~~Hunton & Xxxxxxxx LLP, ~~Kaplan, Wxxxx & Cxxxx, P.C., New York~~ special counsel for the Loan Parties, with respect to ~~the~~ such matters (and in 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 reasonably request. (xiii) An opinion of local counsel for the Loan Parties (A) from Hunton & Wxxxxxxx LLP, in substantially the form of Exhibit F-2 hereto, (B) from Vxxxxxx LLP in substantially the form of Exhibit F-3 hereto, and (C) from Hxxxx, Xxxxx & Axxxxx, LLP in substantially 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~~ An opinion of counsel for the Loan Parties reasonably satisfactory to the Administrative Agent covering certain corporate formalities and other matters that the Administrative Agent on behalf of the Lender Parties may reasonably request. (xv) An opinion of Shearman & Sterling LLP, counsel for the Administrative Agent, in form and substance satisfactory to the Administrative Agent. (xvi) One or more Notices of Borrowing or a Notice of Issuance, as applicable, relating to the Initial Extension of ~~Credit and~~ Credit, each dated and delivered ~~not less than~~ to the Administrative Agent at least three (3) Business Days prior to the ~~date of the Initial Extension of Credit~~Closing Date. (xvxvii) 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~~ 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. (xvi) A breakage indemnity letter agreement executed by the Borrower in form and substance satisfactory to the Administrative Agent and dated and delivered to the Administrative Agent at least three (3) Business Days prior to the Closing Date. (b) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its ~~Subsidiaries~~Subsidiaries that directly or indirectly owns a Borrowing Base Asset, 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, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving 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~~ Material Adverse Change since December 31, ~~2014~~2012. (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 “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~~ The Administrative Agent shall have ~~complied with~~ received a breakage indemnity letter agreement executed by the ~~requirements of Section 5.02(p)~~ Borrower and ~~provided evidence of such compliance~~ the Parent Guarantor in form and substance satisfactory to the Administrative ~~Agent~~Agent and dated and delivered to the Administrative Agent at least three (3) Business Days prior to the Closing Date. (h) 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). ~~(i) The Existing Credit Agreement shall have been, or substantially simultaneously with the effectiveness hereof shall be, terminated and all Obligations thereunder paid in full.~~

Appears in 1 contract

Samples: Credit Agreement (Hersha Hospitality Trust)

Common use of Conditions Precedent to Initial Extension of Credit Clause in Contracts