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 Closing Date the following, each dated the Closing Date (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party: (i) This Agreement, together with a Note payable to the order of each Lender that has requested a Note prior to the Closing Date. (ii) Copies of the Borrowing Base Property Qualification Documents for each of the Borrowing Base Properties. (iii) Certified copies of the resolutions of the Board of Directors, board of managers, management committee, general partner or managing member (or other similar body), as applicable, of each Loan Party approving the transactions contemplated by the Loan Documents and each Loan Document to which it is or is to be a party, 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 is or is to be a party. (iv) 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 1772 Sweet Home Road, LLC, 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 and 1772 Sweet Home Road, LLC, (A) as to a true and correct copy of the charter, certificate of limited partnership, certificate of formation or other comparable organizational document of such Loan Party and 1772 Sweet Home Road, LLC, and of each amendment thereto on file in such Secretary's office and (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, certificate of formation or other comparable organizational document, as applicable, of such Loan Party or 1772 Sweet Home Road, LLC, that are on file in such Secretary's office and (2) such Loan Party or 1772 Sweet Home Road, LLC has paid all franchise taxes to the date of such certificate and (C) that such Loan Party or 1772 Sweet Home Road, LLC 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. (v) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or 1772 Sweet Home Road, LLC owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation, limited partnership or limited liability company (except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect), dated reasonably near (but prior to) the Closing Date, stating, with respect to each such Loan Party or 1772 Sweet Home Road, LLC,, that such Loan Party or 1772 Sweet Home Road, LLC 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. (vi) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary (or those of its general partner or managing member or other authorized representative, if applicable), dated the Closing Date, certifying as to (A) a true and correct copy of the bylaws, operating agreement, partnership agreement or other governing document of such Loan Party and 1772 Sweet Home Road, LLC, as in effect on the date on which the resolutions referred to in Section 3.01(a)(iii) were adopted and on the Closing Date, (or that there have been no changes from those agreements delivered pursuant to the Original Credit Agreement), (B) the due incorporation, organization or formation and good standing or valid existence of such Loan Party and 1772 Sweet Home Road, LLC as a corporation, limited liability company or general or limited 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 and 1772 Sweet Home Road, LLC, (C) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the Closing Date and (D) the absence of any event that has occurred and is continuing, or that would result from the Initial Extension of Credit, that constitutes a Default or an Event of Default. (vii) A certificate of the Secretary or an Assistant Secretary (or other Responsible Officer, if applicable) of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party (either individually or as the general partner or managing member of another Loan Party) and the other documents to be delivered hereunder and thereunder. (viii) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have 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, Material Contracts and Tenancy Leases (together with copies thereof if requested by the Administrative Agent), audited annual financial statements for the year ending December 31, 2005, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available (or, in the event the Lender Parties' due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the Closing Date).
Appears in 1 contract
Conditions Precedent to Initial Extension of Credit. The obligation obligations of each Lender the Lenders to make an Advance or Advances and of any the Issuing Bank Banks to issue a Letter of Credit on the occasion of the Initial Extension Letters of Credit hereunder is subject to will become effective on the satisfaction Effective Date, when each of the following conditions precedent before are satisfied (or concurrently waived in accordance with the Initial Extension of Credit:Section 9.01):
(a) The Administrative Agent shall have received on or before the Closing Effective Date the following, each dated the Closing Date such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:):
(i) This Executed counterparts of this Agreement, together with a Note payable to the order of each Lender that has requested a Note prior to the Closing Date.
(ii) Copies of the Borrowing Base Property Qualification Documents for each of the Borrowing Base Properties.
(iii) Certified copies of the resolutions of the Board of Directors, board of managers, management committee, general partner or managing member directors (or other similar equivalent governing body), as applicable, ) of each Loan Party approving the transactions contemplated by the Loan Documents Transaction and each Loan Document to which it is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under the Loan Documents Transaction and each Loan Document to which it is or is to be a party.
(iv) A copy of a certificate of the Secretary of State (or equivalent authority) of the jurisdiction of incorporation, organization or formation of each Loan Party and 1772 Sweet Home Road, LLC, 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 and 1772 Sweet Home Road, LLC, (A) as to a true and correct copy of the charter, certificate of limited partnership, certificate of formation or other comparable organizational document of such Loan Party and 1772 Sweet Home Road, LLC, and of each amendment thereto on file in such Secretary's office and (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, certificate of formation or other comparable organizational document, as applicable, of such Loan Party or 1772 Sweet Home Road, LLC, that are on file in such Secretary's office and (2) such Loan Party or 1772 Sweet Home Road, LLC has paid all franchise taxes to the date of such certificate and (C) that such Loan Party or 1772 Sweet Home Road, LLC 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.
(v) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or 1772 Sweet Home Road, LLC owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation, limited partnership or limited liability company (except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect), dated reasonably near (but prior to) the Closing Date, stating, with respect to each such Loan Party or 1772 Sweet Home Road, LLC,, that such Loan Party or 1772 Sweet Home Road, LLC 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.
(vi) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary (or those of its general partner or managing member or other authorized representative, if applicable), dated the Closing Date, certifying as to (A) a true and correct copy of the bylaws, operating agreement, partnership agreement or other governing document of such Loan Party and 1772 Sweet Home Road, LLC, as in effect on the date on which the resolutions referred to in Section 3.01(a)(iii) were adopted and on the Closing Date, (or that there have been no changes from those agreements delivered pursuant to the Original Credit Agreement), (B) the due incorporation, organization or formation and good standing or valid existence of such Loan Party and 1772 Sweet Home Road, LLC as a corporation, limited liability company or general or limited 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 and 1772 Sweet Home Road, LLC, (C) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the Closing Date and (D) the absence of any event that has occurred and is continuing, or that would result from the Initial Extension of Credit, that constitutes a Default or an Event of Default.
(viiiii) A certificate of the Secretary or an Assistant Secretary (or other Responsible Officer, if applicable) of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party (either individually or as the general partner or managing member of another Loan Party) and the other documents to be delivered hereunder and thereunder.
(viiiiv) Such financialA Note executed by the Borrower in favor of each Lender requesting a Note at least three Business Days prior to the Effective Date.
(i) A certificate of the Secretary or Assistant Secretary of each Loan Party, business countersigned on behalf of such Loan Party by another officer of such Loan Party, dated the date of the Initial Extension of Credit (the statements made in which certificate shall be true on and other information regarding as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(vi), (B) a true and correct copy of the bylaws of such Loan Party as in effect on the date of the Initial Extension of Credit and (C) the good standing of each Loan Party (to the extent such concept exists in the applicable jurisdiction) (with the applicable good standing certificates attached thereto), and (ii) a certificate of the President or a Vice President of the Borrower, dated the date of the Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the 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 (B) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.
(vi) A copy of a certificate of the Secretary of State (or other similar official) of the jurisdiction of incorporation of each Loan Party, dated reasonably near the date of the signing of this Agreement, certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary’s office (to the extent the Secretary of State in the applicable jurisdictions typically provides such a certification) and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, (2) such Loan Party has paid all franchise taxes to the date of such certificate (to the extent the Secretary of State in the applicable jurisdictions typically provides such a certification) and (3) such Loan Party is duly incorporated and in good standing (to the extent such concept exists in the applicable jurisdiction) or presently subsisting under the laws of the State of the jurisdiction of its incorporation.
(vii) A certificate, in substantially the form of Exhibit E hereto, attesting to the Solvency of the Loan Parties before and after giving effect to the Transaction, from the chief financial officer or the treasurer of the Borrower.
(viii) Delivery of the financial statements described in Section 4.01(g) and forecasts prepared by management of the Borrower, in form and substance satisfactory to the Lender Parties, of balance sheets, income statements and cash flow statements of the Borrower and its Subsidiaries as on a quarterly basis for each fiscal quarter ending during the Lender Parties shall have requestedFiscal Year ending December 31, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans 2015 and Welfare Plans, collective bargaining agreements and other arrangements with employees, Material Contracts and Tenancy Leases (together with copies thereof if requested by the Administrative Agent), audited on an annual financial statements basis for each year thereafter until the year ending December 31, 20052017.
(ix) A Notice of Borrowing or Notice of Issuance, interim financial statements dated as applicable, relating to the end Initial Extension of Credit.
(x) A favorable opinion of White & Case LLP, counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent.
(xi) A favorable opinion of Husch Xxxxxxxxx LLP, Illinois and Missouri counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent.
(b) Since December 31, 2014, there has been no event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have had a Material Adverse Change.
(c) The Borrower shall have paid all accrued and duly invoiced fees of the most recent fiscal quarter for which financial statements are available Agents, the Lead Arrangers and the Lender Parties and all accrued and duly invoiced expenses of the Agents and the Lead Arrangers (orincluding the accrued and duly invoiced fees and expenses of counsel to the Administrative Agent) to the extent payable under any Loan Document or any other agreement between the Borrower and any Agent and/or Lead Arranger.
(d) The Lender Parties shall have received satisfactory evidence of repayment of all Debt, termination of all commitments, the release of all guaranties and the discharge of all liens (if any) (other than Permitted Liens or other Liens permitted pursuant to Section 5.02(a)) under the Existing Credit Agreements.
(e) The Lender Parties shall have received satisfactory evidence that the settlement of the Notes Exchange shall have occurred or will occur on the Effective Date (provided that there shall be no requirement that a minimum amount of KCSR Notes or KCSM Notes have been exchanged in the event the Lender Parties' due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the Closing DateNotes Exchange).
(f) The Administrative Agent shall have received, at least three days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, that the Administrative Agent has requested reasonably in advance, but not less than ten days prior to the Effective Date.
Appears in 1 contract
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make an Advance or of any Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the Closing Date the following, each dated the Closing Date (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:
(i) This Agreement, together with a Note payable to the order of each Lender that has requested a Note prior to the Closing Date.
(ii) Copies of the Borrowing Base Property Qualification Documents for each of the Borrowing Base Properties.
(iii) Certified copies of the resolutions of the Board of Directors, board of managers, management committee, general partner or managing member (or other similar body), as applicable, of each Loan Party approving the transactions contemplated by the Loan Documents and each Loan Document to which it is or is to be a party, 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 is or is to be a party.
(iv) 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 1772 Sweet Home Road, LLCParty, 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 and 1772 Sweet Home Road, LLCParty, (A) as to a true and correct copy of the charter, certificate of limited partnership, certificate of formation or other comparable organizational document of such Loan Party and 1772 Sweet Home Road, LLCParty, and of each amendment thereto on file in such Secretary's ’s office and (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, certificate of formation or other comparable organizational document, as applicable, of such Loan Party or 1772 Sweet Home Road, LLC, that are on file in such Secretary's ’s office and (2) such Loan Party or 1772 Sweet Home Road, LLC has paid all franchise taxes to the date of such certificate and (C) that such Loan Party or 1772 Sweet Home Road, LLC 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.
(v) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or 1772 Sweet Home Road, LLC owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation, limited partnership or limited liability company (except where the failure to so qualify or be licensed (A) would not be reasonably likely to have a Material Adverse Effect), and (B) is not a jurisdiction in which a Borrowing Base Property is located, dated reasonably near (but prior to) the Closing Date, stating, with respect to each such Loan Party or 1772 Sweet Home Road, LLC,Party, that such Loan Party or 1772 Sweet Home Road, LLC 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.
(vi) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary (or those of its general partner or managing member or other authorized representative, if applicable), dated the Closing Date, certifying as to (A) a true and correct copy of the bylaws, operating agreement, partnership agreement or other governing document of such Loan Party and 1772 Sweet Home Road, LLC, as in effect on the date on which the resolutions referred to in Section 3.01(a)(iii) were adopted and on the Closing Date, (or that there have been no changes from those agreements delivered pursuant to the Original Existing Credit Agreement), (B) the due incorporation, organization or formation and good standing or valid existence of such Loan Party and 1772 Sweet Home Road, LLC as a corporation, limited liability company or general or limited 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 and 1772 Sweet Home Road, LLCParty, (C) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the Closing Date and (D) the absence of any event that has occurred and is continuing, or that would result from the Initial Extension of Credit, that constitutes a Default or an Event of Default.
(vii) A certificate of the Secretary or an Assistant Secretary (or other Responsible Officer, if applicable) of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party (either individually or as the general partner or managing member of another Loan Party) and the other documents to be delivered hereunder and thereunder.
(viii) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have 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, Material Contracts and Tenancy Leases (together with copies thereof if requested by the Administrative Agent), audited annual financial statements for the year ending December 31, 20052010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available (or, in the event the Lender Parties' ’ due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the Closing Date).
(ix) [Intentionally Omitted.]
(x) Opinions of Xxxxx Lord Xxxxxxx & Xxxxxxx LLP, counsel for the Loan Parties, in substantially the form of Exhibit F hereto and as to such other matters as the Administrative Agent may reasonably request.
(xi) [Intentionally Omitted.]
(xii) [Intentionally Omitted.]
(xiii) A Notice of Borrowing or Notice of Issuance, as applicable, and a Borrowing Base Certificate relating to the Initial Extension of Credit.
(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 Loan Parties shall have no Debt, other than Surviving Debt, and all Surviving Debt shall be on terms and conditions satisfactory to the Lender Parties.
(d) The Administrative Agent shall have received satisfactory evidence that the indebtedness under the Key Bank/ACC Term Loan Agreement and the ASU Construction Loan Agreement has been, or contemporaneously with the Initial Extension of Credit will be, satisfied.
(e) Before and after giving effect to the transactions contemplated by the Loan Documents, there shall have occurred (i) no Material Adverse Change since March 31, 2011, and (ii) no material adverse change in the Initial Borrowing Base Properties since the date of this Agreement.
(f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “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 adverse change in the status, or financial effect on any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(g) 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.
(h) The Borrower shall have paid all fees that are due and payable pursuant to the Fee Letter, all other accrued fees of the Administrative Agent and the Lender Parties and all out-of-pocket expenses (including the reasonable fees and expenses of counsel) of the Administrative Agent and the Arranger.
Appears in 1 contract
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make an Advance or of any Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the Closing Date the following, each dated the Closing Date (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:
(i) This Agreement, together with a Note payable to the order of each Lender that has requested a Note prior to the Closing Date.
(ii) Copies of the Borrowing Base Property Qualification Documents for each of the Borrowing Base Properties.
(iii) Certified copies of the resolutions of the Board of Directors, board of managers, management committee, general partner or managing member (or other similar body), as applicable, of each Loan Party approving the transactions contemplated by the Loan Documents and each Loan Document to which it is or is to be a party, 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 is or is to be a party.
(iv) 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 1772 Sweet Home Road, LLCParty, 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 and 1772 Sweet Home Road, LLCParty, (A) as to a true and correct copy of the charter, certificate of limited partnership, certificate of formation or other comparable organizational document of such Loan Party and 1772 Sweet Home Road, LLCParty, and of each amendment thereto on file in such Secretary's ’s office and (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, certificate of formation or other comparable organizational document, as applicable, of such Loan Party or 1772 Sweet Home Road, LLC, that are on file in such Secretary's ’s office and (2) such Loan Party or 1772 Sweet Home Road, LLC has paid all franchise taxes to the date of such certificate and (C) that such Loan Party or 1772 Sweet Home Road, LLC 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.
(v) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or 1772 Sweet Home Road, LLC owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation, limited partnership or limited liability company (except where the failure to so qualify or be licensed (A) would not be reasonably likely to have a Material Adverse Effect), and (B) is not a jurisdiction in which a Borrowing Base Property is located, dated reasonably near (but prior to) the Closing Date, stating, with respect to each such Loan Party or 1772 Sweet Home Road, LLC,Party, that such Loan Party or 1772 Sweet Home Road, LLC 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.
(vi) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary (or those of its general partner or managing member or other authorized representative, if applicable), dated the Closing Date, certifying as to (A) a true and correct copy of the bylaws, operating agreement, partnership agreement or other governing document of such Loan Party and 1772 Sweet Home Road, LLC, as in effect on the date on which the resolutions referred to in Section 3.01(a)(iii) were adopted and on the Closing Date, (or that there have been no changes from those agreements delivered pursuant to the Original Existing Credit Agreement), (B) the due incorporation, organization or formation and good standing or valid existence of such Loan Party and 1772 Sweet Home Road, LLC as a corporation, limited liability company or general or limited 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 and 1772 Sweet Home Road, LLCParty, (C) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the Closing Date and (D) the absence of any event that has occurred and is continuing, or that would result from the Initial Extension of Credit, that constitutes a Default or an Event of Default.
(vii) A certificate of the Secretary or an Assistant Secretary (or other Responsible Officer, if applicable) of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party (either individually or as the general partner or managing member of another Loan Party) and the other documents to be delivered hereunder and thereunder.
(viii) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have 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, Material Contracts and Tenancy Leases (together with copies thereof if requested by the Administrative Agent), audited annual financial statements for the year ending December 31, 20052008, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available (or, in the event the Lender Parties' ’ due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the Closing Date).
(ix) Evidence of insurance naming the Administrative Agent as loss payee and additional insured for itself and, when applicable, as agent for other participating Lenders, with such responsible and reputable insurance companies, and in such amounts and covering such risks, in each case as is satisfactory to the Administrative Agent.
Appears in 1 contract
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make an Advance or of any Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the Closing Date the following, each dated the Closing Date (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:
(i) This Agreement, together with a Note payable to the order of each Lender that has requested a Note prior to the Closing Date.
(ii) Copies of the Borrowing Base Property Qualification Documents for each of the Borrowing Base Properties[Intentionally omitted.]
(iii) Certified copies of the resolutions of the Board of Directors, board of managers, management committee, general partner or managing member (or other similar body), as applicable, of each Loan Party approving the transactions contemplated by the Loan Documents and each Loan Document to which it is or is to be a party, 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 is or is to be a party.
(iv) 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 1772 Sweet Home Road, LLCParty, 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 and 1772 Sweet Home Road, LLCParty, (A) as to a true and correct copy of the charter, certificate of limited partnership, certificate of formation or other comparable organizational document of such Loan Party and 1772 Sweet Home Road, LLCParty, and of each amendment thereto on file in such Secretary's ’s office and (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, certificate of formation or other comparable organizational document, as applicable, of such Loan Party or 1772 Sweet Home Road, LLC, that are on file in such Secretary's ’s office and (2) such Loan Party or 1772 Sweet Home Road, LLC has paid all franchise taxes to the date of such certificate and (C) that such Loan Party or 1772 Sweet Home Road, LLC 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.
(v) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or 1772 Sweet Home Road, LLC owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation, limited partnership or limited liability company (except where the failure to so qualify or be licensed (A) would not be reasonably likely to have a Material Adverse Effect), and (B) is not a jurisdiction in which a Unencumbered Property is located, dated reasonably near (but prior to) the Closing Date, stating, with respect to each such Loan Party or 1772 Sweet Home Road, LLC,Party, that such Loan Party or 1772 Sweet Home Road, LLC 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.
(vi) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary (or those of its general partner or managing member or other authorized representative, if applicable), dated the Closing Date, certifying as to (A) a true and correct copy of the bylaws, operating agreement, partnership agreement or other governing document of such Loan Party and 1772 Sweet Home Road, LLC, as in effect on the date on which the resolutions referred to in Section 3.01(a)(iii) were adopted and on the Closing Date, (or that there have been no changes from those agreements delivered pursuant to the Original Existing Credit Agreement), (B) the due incorporation, organization or formation and good standing or valid existence of such Loan Party and 1772 Sweet Home Road, LLC as a corporation, limited liability company or general or limited 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 and 1772 Sweet Home Road, LLCParty, (C) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the Closing Date and (D) the absence of any event that has occurred and is continuing, or that would result from the Initial Extension of Credit, that constitutes a Default or an Event of Default.
(vii) A certificate of the Secretary or an Assistant Secretary (or other Responsible Officer, if applicable) of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party (either individually or as the general partner or managing member of another Loan Party) and the other documents to be delivered hereunder and thereunder.
(viii) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have 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, Material Contracts and Tenancy Leases (together with copies thereof if requested by the Administrative Agent), audited annual financial statements for the year ending ended December 31, 20052015, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available (or, in the event the Lender Parties' ’ due diligence review reveals material changes since such financial statements, as of a later date within 45 forty-five (45) days of the Closing Date).
(ix) [Intentionally Omitted.]
(x) Opinions of Dentons US LLP, counsel for the Loan Parties, in substantially the form of Exhibit F hereto and as to such other matters as the Administrative Agent may reasonably request.
(xi) [Intentionally Omitted.]
(xii) [Intentionally Omitted.]
(xiii) A Notice of Borrowing or Notice of Issuance, as applicable, and an Unencumbered Property Certificate relating to the Initial Extension of Credit.
(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 Loan Parties shall have no Debt, other than Surviving Debt, and all Surviving Debt shall be on terms and conditions satisfactory to the Lender Parties.
Appears in 1 contract
Samples: Credit Agreement (American Campus Communities Operating Partnership LP)
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 Closing Date the following, each dated the Closing Date (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:
(i) This Agreement, together with a Note payable to the order of each Lender that has requested a Note prior to the Closing Date.
(ii) Copies of the Borrowing Base Property Qualification Documents for each of the Borrowing Base Properties[Intentionally omitted.]
(iii) Certified copies of the resolutions of the Board of Directors, board of managers, management committee, general partner or managing member (or other similar body), as applicable, of each Loan Party approving the transactions contemplated by the Loan Documents and each Loan Document to which it is or is to be a party, 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 is or is to be a party.
(iv) 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 1772 Sweet Home Road, LLCParty, 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 and 1772 Sweet Home Road, LLCParty, (A) as to a true and correct copy of the charter, certificate of limited partnership, certificate of formation or other comparable organizational document of such Loan Party and 1772 Sweet Home Road, LLCParty, and of each amendment thereto on file in such Secretary's ’s office and (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, certificate of formation or other comparable organizational document, as applicable, of such Loan Party or 1772 Sweet Home Road, LLC, that are on file in such Secretary's ’s office and (2) such Loan Party or 1772 Sweet Home Road, LLC has paid all franchise taxes to the date of such certificate and (C) that such Loan Party or 1772 Sweet Home Road, LLC 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.
(v) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or 1772 Sweet Home Road, LLC owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation, limited partnership or limited liability company (except where the failure to so qualify or be licensed (A) would not be reasonably likely to have a Material Adverse Effect), and (B) is not a jurisdiction in which a Unencumbered Property is located, dated reasonably near (but prior to) the Closing Date, stating, with respect to each such Loan Party or 1772 Sweet Home Road, LLC,Party, that such Loan Party or 1772 Sweet Home Road, LLC 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.
(vi) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary (or those of its general partner or managing member or other authorized representative, if applicable), dated the Closing Date, certifying as to (A) a true and correct copy of the bylaws, operating agreement, partnership agreement or other governing document of such Loan Party and 1772 Sweet Home Road, LLC, as in effect on the date on which the resolutions referred to in Section 3.01(a)(iii) were adopted and on the Closing Date, (or that there have been no changes from those agreements delivered pursuant to the Original Existing Credit Agreement), (B) the due incorporation, organization or formation and good standing or valid existence of such Loan Party and 1772 Sweet Home Road, LLC as a corporation, limited liability company or general or limited 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 and 1772 Sweet Home Road, LLCParty, (C) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the Closing Date and (D) the absence of any event that has occurred and is continuing, or that would result from the Initial Extension of Credit, that constitutes a Default or an Event of Default.
(vii) A certificate of the Secretary or an Assistant Secretary (or other Responsible Officer, if applicable) of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party (either individually or as the general partner or managing member of another Loan Party) and the other documents to be delivered hereunder and thereunder.
(viii) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have 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, Material Contracts and Tenancy Leases (together with copies thereof if requested by the Administrative Agent), audited annual financial statements for the year ending ended December 31, 20052012, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available (or, in the event the Lender Parties' ’ due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the Closing Date).
(ix) [Intentionally Omitted.]
(x) Opinions of Xxxxx Lord LLP, counsel for the Loan Parties, in substantially the form of Exhibit F hereto and as to such other matters as the Administrative Agent may reasonably request.
(xi) [Intentionally Omitted.]
(xii) [Intentionally Omitted.]
(xiii) A Notice of Borrowing or Notice of Issuance, as applicable, and an Unencumbered Property Certificate relating to the Initial Extension of Credit.
(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 Loan Parties shall have no Debt, other than Surviving Debt, and all Surviving Debt shall be on terms and conditions satisfactory to the Lender Parties.
(d) [Intentionally Omitted.]
(e) Before and after giving effect to the transactions contemplated by the Loan Documents, there shall have occurred (i) no Material Adverse Change since September 30, 2013, and (ii) no material adverse change in the Initial Unencumbered Properties since the date of this Agreement.
(f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “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 adverse change in the status, or financial effect on any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(g) 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.
(h) The Borrower shall have paid all fees that are due and payable pursuant to the Fee Letter, all other accrued fees of the Administrative Agent and the Lender Parties and all out-of-pocket expenses (including the reasonable fees and expenses of counsel) of the Administrative Agent and the Arranger.
Appears in 1 contract
Samples: Credit Agreement (American Campus Communities Operating Partnership LP)
