CONDITIONS PRECEDENT TO LOAN The obligations of Lender to make the Loan hereunder are subject to the satisfaction by Borrower of the following conditions:
Conditions Precedent to All Loans It shall be a condition precedent to all Loans (including the initial Loan hereunder) and to the issuance of each Letter of Credit that on the date of such Loan or issuance of a Letter of Credit the following statements shall be true (and each request for a Loan or issuance of a Letter of Credit shall constitute a representation and warranty by the Borrower that on the date of such Loan or such issuance of Letter of Credit that such statements are true): (a) After giving effect to such Loan, the total of all Loans outstanding will not exceed the Total Commitment; (b) The representations and warranties contained in Article 6 are true and correct in all material respects on and as of the date of such Loan or issuance of such Letter of Credit, except to the extent such representations and warranties specifically relate to an earlier date; (c) No event has occurred or is continuing or would result from the making of such Loan or issuance of such Letter of Credit, which would constitute a Default or an Event of Default; (d) The Borrower has delivered to the Agent the Borrowing Notice and Compliance Certificate required pursuant to Section 2.3 hereof; and (e) After giving effect to all Loans and the issuances of all Letters of Credit, (a) the Value of the total assets of the Borrower (less the Value of its assets pledged to any Person other than the Secured Parties and less (without duplication) the Value of all Excluded Real Estate Investments), shall be equal to or in excess of 250% of the sum of the Required Amount, plus the outstanding principal balance of the Loans, plus accrued and unpaid interest on the Loans, plus the then current L/C Exposure, plus any liability of the Borrower for which the termination value on any swap exceeds the collateral held for such swap, plus the outstanding principal balance of the Loan (as defined in the Term Loan Agreement), plus accrued and unpaid interest on the Loan (as defined in the Term Loan Agreement) under the Term Loan Agreement.
Conditions Precedent to Loans The obligation of each Initial Lender to make its Initial Loan hereunder is subject to satisfaction of the following conditions precedent: (a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders: (i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower; (ii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party; (iii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; (iv) a favorable opinion of Vxxxxx and Exxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent, Lead Arranger, each Co-Arranger and each Lender, as to the matters set forth in Exhibit E and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request; (v) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies, or an exhibit, of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required; (vi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in paragraphs (xvi) and (xvii) below have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (vii) certificates attesting to the Solvency of each Loan Party before and after giving effect to the transactions contemplated by this Agreement and the incurrence of indebtedness related thereto and application of proceeds, from its chief financial officer; (viii) audited consolidated financial statements of the Borrower for the 2004 and 2005 fiscal years and unaudited consolidated financial statements of the Borrower for any interim quarterly periods that have ended since the most recent of such audited financial statements, which in each case, (1) shall be satisfactory in form and substance to the Lead Arranger and the Lenders, (2) shall not be materially inconsistent with the Information heretofore provided to the Lenders, and (3) shall meet the requirements of Regulation S-X under the Securities Act, and all other accounting rules and regulations of the SEC promulgated thereunder applicable to a registration statement under such Act on Form S-1. (ix) evidence of the receipt by the Borrower of not less than $250,000,000 cash proceeds from the issuance of Equity Interests of the Borrower; (x) evidence that the Existing Agreement has been or concurrently with the Closing Date is being terminated and repaid in full; (xi) such other certificates, documents, or opinions as the Administrative Agent or the Required Lenders reasonably may require; (xii) any fees required to be paid on or before the Closing Date shall have been paid; (xiii) unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent); (xiv) the Closing Date shall have occurred on or before March 31, 2007; (xv) there shall have been no change, occurrence or development since December 31, 2005 that could reasonably be expected to have a Material Adverse Effect; (xvi) the representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Article IV, the representations and warranties contained in subsections 5.05(a) and (b) of
Conditions Precedent to EFFECTIVENESS OF SECTIONS 2.01 AND 2.03. Sections 2.01 and 2.03 of this Agreement shall become effective on and as of the first date (the "EFFECTIVE DATE") on which the following conditions precedent to the initial Advance by any Lender have been satisfied: (a) There shall exist no action, suit, investigation, litigation or proceeding affecting the Company or any of its Consolidated Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby. (b) Nothing shall have come to the attention of the Lenders during the course of their due diligence investigation to lead them to believe that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect; without limiting the generality of the foregoing, the Lenders shall have been given such access to the management, records, books of account, contracts and properties of the Company and its Consolidated Subsidiaries as they shall have reasonably requested as a basis for making its decision to enter into its commitment hereunder. (c) All governmental and third party consents and approvals necessary in connection with the transactions by the Company contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (d) The Company shall have notified the Agent in writing as to the proposed Effective Date. (e) The Company shall have paid all accrued fees and expenses of the Agent and the Lenders (including the invoiced accrued fees and expenses of counsel to the Agent). (f) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that: (i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and (ii) No event has occurred and is continuing that constitutes a Default. (g) The Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance satisfactory to the Agent and (except for the Revolving Credit Notes) in sufficient copies for each Lender: (i) The Revolving Credit Notes of the Company to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.16. (ii) Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes to be delivered by it, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes to be delivered by it. (iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes to be delivered by it and the other documents to be delivered by it hereunder. (iv) A favorable opinion of Nicholas J. Camera, General Counsel of the Compaxx, xxx xx Xleary, Gottlieb, Steen & Hamilton, counsel for the Company, substanxxxxxy in the form of Exhibits D-1 and D-2 hereto, respectively. (v) A favorable opinion of Shearman & Sterling, counsel for the Agent, in form and substance satisfactory to the Agent. (h) The termination of the commitments of the Lenders and the payment in full of all Debt outstanding under the bilateral credit agreements and other confirmed lines of credit listed on Schedule 3.01(h).
Conditions Precedent to Purchase The Purchase under this Agreement is subject to the conditions precedent that (a) Buyer shall have received on or before the date of such purchase those documents listed on Schedule A and (b) all of the conditions to the initial purchase under the Purchase Agreement shall have been satisfied or waived in accordance with the terms thereof.
Conditions Precedent to Advances Notwithstanding any other provision of this Agreement or the Other Agreements and without affecting in any manner the rights of Lender under this Agreement, it is understood and agreed that Lender shall have no obligation to make any advance under this Agreement unless and until the following conditions have been, and continue to be, satisfied, all in form and substance reasonably satisfactory to Lender and its counsel: (a) Lender shall have received, on or prior to the Closing Date unless otherwise indicated, the following documents: (i) the Notes, duly executed and delivered; (ii) evidence of the qualification and good standing of Borrower in each state in which it is required to be qualified to do business except where its failure to qualify or its lack of good standing would not have a material. adverse affect on Borrower or its ability to conduct its business as currently conducted; (iii) certified copies of the resolutions of the Board of Directors of Borrower (a) authorizing the Loans and the Hedge Agreement, and (b) authorizing execution and delivery of this Agreement and the Other Agreements by officers of the Borrower; (iv) certificates of the secretary of the Borrower certifying to the Lender the names of its officers, the offices that each holds, the authenticity of their signatures, and the completeness and accuracy of its articles of incorporation and bylaws; (v) an opinion of Borrower’s counsel, duly executed and delivered; and (vi) the Other Agreements, duly executed and delivered; (b) Borrower shall have executed and delivered such additional documents and instruments as have been requested by Lender; (c) the representations and warranties contained herein shall be true on and as of the Closing Date, and there shall exist on the Closing Date no Default or Event of Default; (d) the advances on the terms and conditions herein provided (including the use by Borrower of the proceeds of the advances) shall not violate any applicable law or governmental regulation (including, without limitation, Regulations G, T, U and X of the Board of Governors of the Federal Reserve System) and shall not subject Lender to tax (other than income and franchise taxes) and Lender shall have received such certificates or other evidence as Lender may reasonably request to establish compliance with this condition; and (e) all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incident thereto shall be in substance and form reasonably satisfactory to Lender and its counsel, and Lender and its counsel shall have received all such counterpart originals or certified or other copies of such documents as Lender or its counsel may reasonably request.
CONDITIONS PRECEDENT TO OBLIGATIONS OF DEVELOPER The obligations of Developer under this Agreement are conditioned upon the following:
Conditions Precedent to Borrowing The obligation of the Liquidity Provider to make an Advance on the occasion of each Borrowing shall be subject to the conditions precedent that the Effective Date shall have occurred and, prior to the date of such Borrowing, the Borrower shall have delivered a Notice of Borrowing which conforms to the terms and conditions of this Agreement and has been completed as may be required by the relevant form of the Notice of Borrowing for the type of Advances requested.
CONDITIONS PRECEDENT TO EACH ADVANCE Lender’s obligation to make the initial Advance and each subsequent Advance under this Agreement shall be subject to the fulfillment to Lender’s satisfaction of all of the conditions set forth in this Agreement and in the Related Documents.
Conditions Precedent to Initial Loan This effectiveness of this Agreement is subject to the fulfillment, to the reasonable satisfaction of Agent and its counsel, of each of the following conditions (unless otherwise waived by Agent): (a) Agent shall have received this Agreement and each other Loan Document, executed and delivered by each Borrower and each Lender; (b) Agent shall have received a UCC search from the Secretary of State of the state of each Borrower’s organization, the results of which shall be satisfactory to Agent, and shall have filed a UCC-1 financing statement in such state, in form and substance satisfactory to Agent with respect to each Borrower; (c) Agent shall have received a certificate of status with respect each Borrower dated within 20 days of the date of this Agreement, such certificate to be issued by the Secretary of State of the State of the state of each Borrower’s organization, which certificate shall indicate that such Borrower is in good standing in such state; (d) Agent shall have received a true and correct copy of (i) the certificate of incorporation of FS CREIT and Charter, and (ii) the certificate of formation of Finance Holdings, in each case, certified by the Secretary of State of the State of the state of each Borrower’s organization within 20 days of the date of this Agreement; (e) Agent shall have received a true and correct copy of (i) the Bylaws, certified by a Responsible Officer of FS CREIT as being a true, correct and complete copy thereof, as in effect as of the date of this Agreement and (ii) the operating agreement of Finance Holdings certified by a Responsible Officer of Finance Holdings as being a true, correct and complete copy thereof, as in effect as of the date of this Agreement; (f) Agent shall have received a true and correct copy of the Advisory Agreements, certified by a Responsible Officer of FS CREIT as being a true, correct and complete copy thereof, as in effect as of the date of this Agreement; (g) Agent shall have received a certificate of a Responsible Officer of the Borrowers (i) attesting to the written consent of the board of directors or similar governing body of such Borrower authorizing the execution, delivery, and performance of this Agreement and the other Loan Documents and (ii) attesting to the incumbency and signatures of the Responsible Officers of such Borrower executing on behalf of such Borrower this Agreement and the other Loan Documents. (h) Agent shall have received full payment of all of the out-of-pocket fees, costs, and expenses of Agent (including the reasonable and documented fees and expenses of Agent’s counsel) incurred in connection with the preparation, negotiation, execution, and delivery of this Agreement and the other Loan Documents; (i) Agent shall have received the written opinions, dated the date of this Agreement, of counsel to the Borrowers, in form and substance satisfactory to Agent and its counsel; (j) Agent shall have received a certificate executed by a Responsible Officer of each Borrower to the effect that such Borrower has obtained all orders, consents, approvals, and other authorizations and has made all filings and other notifications (governmental or otherwise) as may be required in connection with the transactions contemplated by the Loan Documents; (k) no litigation, inquiry, other action or proceeding (governmental or otherwise), or injunction or other restraining order shall be pending or overtly threatened that could reasonably be expected to have, in the reasonable opinion of Agent, a Material Adverse Effect; (l) Agent shall have received a Compliance Certificate duly executed by a Responsible Officer of Administrative Borrower; (m) Agent shall have received a Beneficial Ownership Certification with respect to the Borrowers at least two (2) Business Days prior to the Closing Date; (n) Agent shall have received a Control Agreement with respect to the Distribution Account; and (o) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered or executed or recorded and shall be in form and substance reasonably satisfactory to Agent and its counsel.
