Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction of the following conditions precedent: (a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent: (i) counterparts of this Agreement executed by each of the parties hereto; (ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11. (a) and a replacement Swingline Note executed by the Borrower; (iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date; (iv) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement Date; (v) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect; (vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit; (vii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party; (viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent; (ix) evidence that the Fees then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; (x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date); (xi) [reserved]; (xii) a Disbursement Instruction Agreement effective as of the Agreement Date; (xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and (xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries. (b) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect; (c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; (d) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and (e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations. (f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 4 contracts
Samples: Credit Agreement (DiamondRock Hospitality Co), Credit Agreement (DiamondRock Hospitality Co), Credit Agreement (DiamondRock Hospitality Co)
Initial Conditions Precedent. The obligation of the Lenders Lender to effect or permit the occurrence of the first Credit Event Extension hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received each Lender’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, and of duly authorized officers of any other parties thereto, 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 AgentLender:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary Guarantor existing as of the Effective Closing Date;
(iv) each of the certificate or Security Instruments executed by each Loan Party existing as of the Closing Date;
(v) favorable opinions of XxXxxxx Long & Xxxxxxxx LLP, counsel to the Loan Parties, addressed to the Lender, as to the matters set forth in Exhibit C and such other matters concerning the Loan Parties and the Loan Documents as the Lender may reasonably request;
(vi) the articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Loan Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and to request the issuance of Letters of Credit;
(viiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) The results of a recent UCC, tax, judgment and lien search in each of the jurisdictions to which UCC financing statements or other filings or recordations should be made to evidence or perfect security interests in Collateral being granted under the Security Instruments as of the Closing Date, and such search shall reveal no Liens of record with respect to any such Collateral other than Liens to be terminated prior to the Closing Date or other Liens Acceptable to the Lender;
(xi) Each document (including, without limitation, any UCC financing statement) required by the Security Instrument or under applicable Laws or reasonably deemed necessary or appropriate by the Lender to be filed, registered or recorded in order to create in favor of the Lender a perfected first-priority Lien on the Collateral described thereon, shall have been filed, registered or recorded or shall have been delivered to the Lender and be in proper form for filing, registration or recordation;
(xii) All certificates, if any, representing any shares of Pledged Equity Interests pledged pursuant to the Pledge Agreement, together with an opinion undated transfer power for each such certificate executed in blank by a duly authorized officer or agent of counsel to the Loan Party with rights in such Pledged Equity Interest;
(xiii) A certificate or certificates of insurance of the Loan Parties evidencing liability and casualty insurance meeting the requirements set forth in the Loan Documents and in form and substance reasonably acceptable to the Lender, including, without limitation, naming the Lender as additional insured and lenders loss payee;
(A) All agreements, documents and instruments evidencing, or executed in connection with, the Subordinated Indebtedness, (B) the Lender’s satisfaction with the terms thereof, (C) any Subordination Agreements with respect thereto;
(xv) Evidence satisfactory to the Lender that each of the Borrower and each Subsidiary shall have been released from all liabilities and obligations in respect of Indebtedness (other than any Accommodation Subsidiary that is not a Material Subsidiarythe Obligations and other than liabilities and obligations expressly permitted under Section 8.03), addressed including, without limitation, a pay-off letter, UCC termination statements and other releases duly executed by any holder of such Indebtedness to be released, each in form and substance satisfactory to the Administrative Agent Lender.
(xvi) a certificate from a Responsible Officer of the Borrower to the effect that (x) all representations and warranties of the Lenders Loan Parties contained in the Loan Documents are true, correct and covering such customary matters as may be required complete in all material respects and (y) immediately after giving effect to the transactions contemplated by the Administrative Agentthis Agreement, no Default shall exist;
(ix) evidence that the Fees then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxvii) a Compliance Certificate calculated as of the Effective Date March 31, 2008 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Closing Date), a duly completed Loan Notice and funds disbursement Instructions;
(xixviii) [reserved];
(xii) a Disbursement Instruction Agreement effective as certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under applicable Laws, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Agreement Date;
(xiii) evidence Loan Documents or any of repayment the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by force and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agenteffect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding this Agreement or any transaction being financed with the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoproceeds thereof shall be ongoing; and
(xivxix) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There Any fees required to be paid on or before the Closing Date shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;been paid.
(c) No litigationThe Borrower shall have paid all fees, actioncharges and disbursements of counsel to the Lender to the extent invoiced prior to or on the Closing Date, suitplus such additional amounts of such fees, investigation charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or other arbitral, administrative or judicial proceeding to be incurred by it through the closing proceedings (provided that such estimate shall be pending or threatened in writing which could reasonably be expected to (i) result in not thereafter preclude a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability final settling of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, accounts between the Borrower and its Subsidiaries shall have received all approvalsthe Lender), consents and waiverswhich fees, and shall have made but not any charges or given all necessary filings and notices as disbursements, shall be required limited to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations$50,000.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 2 contracts
Samples: Credit Agreement (TRX Inc/Ga), Credit Agreement (TRX Inc/Ga)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Lenders to effect or permit the occurrence fund their respective portions of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is are subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.8;
(iii) the Facility Guaranty executed by each of the Parent and each Material Subsidiary existing as of other Person that the Borrower elects to make a Guarantor on the Effective Date;
(iv) an opinion of counsel to the certificate or Loan Parties, addressed to the Agent and the Lenders, in form and substance reasonably satisfactory to the Agent;
(v) the articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) Party, or, in the case of the Parent only, certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParent;
(vvi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party or its constituent partners or members authorized to execute and deliver the Loan Documents to which such Loan Party is a partyparty and, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Conversion, Continuation and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of CreditConversion;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a certificate from a Responsible Officer of counsel the Parent and the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects and (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed y) immediately after giving effect to the Administrative Agent and the Lenders and covering such customary matters as may be required transactions contemplated by the Administrative Agentthis Agreement, no Default or Event of Default shall exist;
(ixx) evidence that the Fees then due and payable under Section 3.5.3.6, together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(xxi) a Compliance Certificate calculated as of the Effective Date December 31, 2017 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Datehereunder);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective all documentation and other information about the Loan Parties as of shall have been reasonably requested by the Agreement Date;
(xiii) evidence of repayment in full of (x) Agent or any Lender that certain Term Loan Agreement dated as of May 3it shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, 2016, by and among the Borrowerincluding without limitation, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoUSA Patriot Act; and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and Parent or its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date since December 31, 2017 that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower and its the Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Parent, the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 2 contracts
Samples: Term Loan Agreement (Piedmont Office Realty Trust, Inc.), Term Loan Agreement (Piedmont Office Realty Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Term Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than excluding any Lender that has requested that it not receive a Note) executed by the Borrower, payable to each applicable Lender and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.10.(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as owner of an Eligible Property (other than the Effective DateBorrower);
(iv) an opinion of Tones Vaisey, PLLC, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party the Borrower and the Parent certified (x) as of a recent date by the Secretary of State of the state of formation of such Person and of each other Loan Party certified as true, complete and (y) correct copies by the Secretary or Assistant Secretary (or other individual performing similar functions) of such each other Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower the Notice of Term Loan Borrowing and Notices of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Borrowing Base Certificate calculated as of counsel March 31, 2013 giving pro forma to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agenttransactions contemplated herein;
(ixx) a Compliance Certificate calculated on a pro forma basis for the Parent’s fiscal quarter ending March 31, 2013;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxii) a Compliance Certificate calculated as the Notice of Term Loan Borrowing from the Effective Date (giving pro forma effect Borrower requesting $50,000,000 of Loans indicating how the proceeds thereof are to be made available to the financing evidenced by this Agreement Borrower, and the use of the proceeds if any of the Loans initially are to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the BorrowerLIBOR Loans, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoInterest Period thereof; and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The the Parent, the Borrower Borrower, the other Loan Parties, and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The the Parent, the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements the USA Patriot Act (Title III of any AntiPub. L. 107-Money Laundering Laws56 (signed into law October 26, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.2001)); and
(fv) Each there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDocuments.
Appears in 2 contracts
Samples: Term Loan Agreement (Broadstone Net Lease Inc), Term Loan Agreement (Broadstone Net Lease Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes, Swingline Notes, Term Notes of and Bid Rate Notes (or, in each Class case, replacement Notes, as the case may be) executed by the Borrower, payable to each applicable Lender of such Class (other than including any Designated Lender, if applicable but excluding any Lender that has requested that it not receive a NoteNotes (other than Swingline Notes)) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.12.(a);
(iii) an opinion of in-house and outside counsel to the Guaranty executed by each of Borrower and the Parent other Loan Parties, addressed to the Administrative Agent and each Material Subsidiary existing the Lenders and covering such matters as of the Effective DateAdministrative Agent may request;
(iv) (A) copies of the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Person (or in the case of any Loan Party and (y) other than the Borrower, any other date acceptable to the Administrative Agent so long as such organizational documents are certified as of the Effective Date by the Secretary or Assistant Secretary (or other individual performing similar functions) of such the applicable Loan Party) or (B) a certification by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party as being a true, correct and complete copy thereof as of that such documents have not been amended or otherwise modified since the Existing Agreement Date;
(v) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse EffectPerson;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Revolving Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(vii) (A) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A1) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B2) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a partyparty or (B) with respect to the items in clause (A)(1) above, a certification by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party that such documents have not been amended or otherwise modified since the Existing Agreement Date;
(viii) a Closing Certificate substantially in form of Exhibit U, executed on behalf of the Borrower by an opinion authorized officer of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative AgentBorrower;
(ix) a Disbursement Instruction Agreement effective as of the Agreement Date;
(x) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxi) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders by or on behalf of the Borrower prior to the Agreement Date in connection with the transactions contemplated by this Agreement that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which is reasonably likely to be adversely determined, and, if adversely determined, could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, the Borrower and its Subsidiaries the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which which, or the failure to make, give or receive which, would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(e) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender at least 2 Business Days prior to the Agreement Date in order to comply with requirements of any applicable “know your customer” and Anti-Money Laundering Laws, including, including without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.Patriot Act;
(f) Each the Borrower and each other Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case case, at least five (5) Business Days prior to the Effective Date; and
(g) all outstanding “Revolving Loans” under and as defined in the Existing Credit Agreement shall have been repaid in full (which, for the avoidance of doubt, shall be repaid with one or more Revolving Loans under this Agreement).
Appears in 2 contracts
Samples: Credit Agreement (Realty Income Corp), Credit Agreement (Realty Income Corp)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is are subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class and Term Notes executed by the Borrower, payable to each applicable Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors, if any, initially to be a party thereto;
(iv) an opinion of Xxxxxxxx & Worcester LLP, and an opinion of Xxxx Xxxxx Xxxxxxxx & Xxxx LLP, special Maryland counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse EffectEffect and each state in which a Collateral Property owned by such Loan Party is located;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated as of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not Effective Date on a Material Subsidiary)pro forma basis for the Borrower’s fiscal quarter ending December 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2017;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective copy of all Operating Agreements, all Ancillary Agreements, the Business Management Agreement, the Property Management Agreement, in each case certified as true, correct and complete by the chief operating officer or chief financial officer of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(e) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations., including without limitation, the Patriot Act; and
(f) Each there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDocuments.
Appears in 2 contracts
Samples: Credit Agreement (Service Properties Trust), Credit Agreement (Service Properties Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.112.10.
(a) and a replacement Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date;
(iv) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(viv) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viv) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viivi) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiivii) an An opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative AgentLenders;
(ixviii) evidence that the The Fees then due and payable under Section 3.53.6., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the LendersLenders on or prior to the Effective Date, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xix) a A Compliance Certificate calculated as of the Effective Date March 30, 2021 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Effective Date);
(xix) [reserved];
(xii) a A completed Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) Evidence that all indebtedness, liabilities or obligations (other than obligations in respect of Existing Letters of Credit) owing by the Loan Parties under the Existing Credit Agreement shall have been paid in full and all Liens, if any, securing such indebtedness, liabilities or other obligations have been released;
(xii) At least five (5) Business Days prior to the Agreement Date, all documentation and other information requested by the Administrative Agent or any Lender or required by regulatory authorities in order for the Administrative Agent and the Lenders to comply with requirements of any Anti-Money Laundering Laws, including the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) and any applicable “know your customer” rules and regulations;
(xiii) evidence of repayment A Beneficial Ownership Certification in full of relation to the Borrower (xor a certification that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations), in each case at least five (5) that certain Term Loan Business Days prior to the Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoDate; and
(xiv) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Administrative Agent:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 2 contracts
Samples: Credit Agreement (National Retail Properties, Inc.), Credit Agreement (National Retail Properties, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class and Term Notes (other than excluding any Lender that has requested that it not receive a NoteNotes) executed by the Borrower, payable to each applicable Lender and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.10.(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as owner of an Eligible Property (other than the Effective DateBorrower);
(iv) an opinion of Tones Vaisey, PLLC, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party the Borrower and the Parent certified (x) as of a recent date by the Secretary of State of the state of formation of such Person and of each other Loan Party certified as true, complete and (y) correct copies by the Secretary or Assistant Secretary (or other individual performing similar functions) of such each other Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices requests for Letters of ConversionCredit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Borrowing Base Certificate calculated as of counsel June 30, 2012 giving pro forma to the Loan Parties transactions contemplated herein, and demonstrating that after giving effect to all Loans made, and Letters of Credit issued on the Effective Date (together with all other than any Accommodation Subsidiary that is not a Material SubsidiaryLetter of Credit Liabilities, if any), addressed to the Administrative Agent and Borrower will be in compliance with the Lenders and covering such customary matters as may be required by the Administrative Agentlimitations set forth in Section 2.13.(b);
(ixx) a Compliance Certificate calculated on a pro forma basis for the Parent’s fiscal quarter ending June 30, 2012;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) one or more International Swaps and Derivatives Association master agreements executed by the Borrower each in favor of a Disbursement Instruction Agreement effective Lender as of the Agreement Date, including completed Schedules thereto and trade confirmations providing for a floating to fixed interest rate swaps on an aggregate notional amount of at least $80,000,000 in respect of the Term Loans and for a period of at least 3 years (giving effect to any forward starting interest rate swaps), together with evidence of the Borrower’s authority to enter into such agreements;
(xiii) evidence of repayment that all indebtedness, liabilities or obligations owing under the Existing Credit Agreements have been paid in full of (x) that certain Term Loan Agreement dated as of May 3full, 2016all Liens securing such indebtedness, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agentliabilities or obligations have been released, and the other parties thereto, as amended by that certain First Amendment to Term Loan all commitments under such Existing Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoAgreements have been terminated or expired; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The the Parent, the Borrower Borrower, the other Loan Parties, and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The the Parent, the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements the USA Patriot Act (Title III of any AntiPub. L. 107-Money Laundering Laws56 (signed into law October 26, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.2001)); and
(fv) Each there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Party Documents. Without limiting the generality of the provisions of Section 12.5, for purposes of determining compliance with the conditions precedent set forth in this Section 6.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or Subsidiary thereof that qualifies as accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a “legal entity customer” under Lender unless the Beneficial Ownership Regulation Administrative Agent shall have delivered to the Administrative Agent, and any received notice from such Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the proposed Effective DateDate specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Broadstone Net Lease Inc), Credit Agreement (Broadstone Net Lease Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, initial Loans is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the BorrowerBorrowers, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.10;
(iii) the The Guaranty executed by each of the Parent and each Material Subsidiary Guarantor existing as of the Effective Date;
(iv) The Pledge Agreement executed by each Pledgor existing as of the certificate or Agreement Date;
(v) Opinions of counsel to the Loan Parties, addressed to the Agent and the Lenders, addressing the matters set forth in Exhibit F;
(vi) The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrowers and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the BorrowerBorrowers, authorized to execute and deliver on behalf the officers of the Borrower Representative then authorized to deliver Notices of Borrowing, Notices of Conversion, Continuation and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of CreditConversion;
(viiix) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence Evidence that the Fees then due and payable under Section 3.5.3.6, together with all and any other feesFees, expenses and reimbursement reimbursable amounts due and payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, Effective Date have been paid;
(xxi) a A Compliance Certificate calculated as of the Effective Date September 30, 2011 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the Revolving Credit Agreement and the use of the proceeds of the Loans to be funded on the Agreement Effective Date);
(xixii) [reserved]A letter from each applicable agent under the Existing Credit Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the treatment thereof;
(xiixiii) A Borrowing Base Certificate dated as of the Effective Date;
(xiv) Such due diligence (including lien searches and/or title reports) with respect to the Borrowing Base Assets Pool as the Agent on behalf of the Lenders may reasonably request;
(xv) Each document (including, without limitation, any UCC financing statement) and all actions required by any Loan Document or under Applicable Law or reasonably deemed necessary or appropriate by the Agent to be entered into, filed, registered or recorded or taken, in order to create in favor of the Agent, for the benefit of the Lenders, a Disbursement Instruction Agreement perfected first-priority Lien in the Collateral as of the Effective Date, shall have been entered into, filed, registered, recorded, taken or shall have been delivered to the Agent and be in proper form for filing, registration or recordation, as appropriate;
(xvi) A Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixvii) evidence of repayment Evidence that the Intercreditor Agreement shall have been duly executed and delivered by each party thereto and shall be in full of force and effect;
(xxviii) Evidence that certain Term Loan the Revolving Credit Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties theretoLoan Documents (as defined in the Revolving Credit Agreement) to be executed and delivered as a condition to the effectiveness of the Revolving Credit Agreement, as amended shall have been duly executed and delivered by that certain First Amendment to Term Loan Credit Agreement dated as each party thereto and shall be in full force and effect;
(xix) A Notice of April 26, 2017 and (y) that certain Term Loan Agreement dated as Borrowing requesting a borrowing of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoLoans in an aggregate principal amount of $50,000,000 or more; and
(xivxx) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower Trust and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower Borrowers or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower Trust and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i1) any Applicable Law or (ii2) any agreement, document or instrument to which any Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the any Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents; and
(ev) The Borrower Borrowers and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements the USA Patriot Act (Title III of any AntiPub. L. 107-Money Laundering Laws56 (signed into law October 26, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations2001)).
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the BorrowerBorrowers, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.10;
(iii) the The Guaranty executed by each of the Parent and each Material Subsidiary Guarantor existing as of the Effective Date;
(iv) The Pledge Agreement executed by the certificate or Parties thereto;
(v) An opinion of counsel to the Loan Parties, addressed to the Agent and the Lenders, addressing the matters set forth in Exhibit F;
(vi) The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrowers and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the BorrowerBorrowers, authorized to execute and deliver on behalf the officers of the Borrower Representative then authorized to deliver Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, Conversion and to request the issuance of Letters of Credit;
(viiix) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence that the The Fees then due and payable under Section 3.5.3.6, together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(xxi) a A Compliance Certificate calculated as of the Effective Date , 2009 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Effective Date);
(xi) [reserved];
(xii) a Disbursement Instruction A letter from each applicable agent under the Existing Credit Agreement effective as providing information regarding the payment in full of amounts outstanding thereunder and providing for the Agreement Datetreatment thereof;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement A Borrowing Base Certificate dated as of May 3the Effective Date;
(xiv) Such due diligence (including lien searches and/or title reports) with respect to the Borrowing Base Assets Pool as the Agent on behalf of the Lenders may reasonably request;
(xv) all documentation, 2016recordings, by filings and among other actions in the Borrower, judgment of the Parent, Agent required to collaterally assign the financial institutions from time Collateral to time party thereto, KeyBank National Association, as administrative agent, the Agent for the benefit of the Lenders and to perfect the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among Agent’s first priority Lien therein for the Borrower, benefit the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoLenders shall have been completed; and
(xivxvi) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower Trust and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower Borrowers or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower Trust and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i1) any Applicable Law or (ii2) any agreement, document or instrument to which any Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the any Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each applicable Lender of such Class (other than but excluding any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.11.
(a2.12(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date[intentionally omitted];
(iv) [intentionally omitted];
(v) one or more opinions of counsel to the Borrower and such other Loan Parties as the Administrative Agent may request, addressed to the Administrative Agent and the Lenders;
(vi) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of incorporation or formation of each such Loan Party Party, as applicable, and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, Borrowing and to request issuance of requests for Letters of Credit;
(viiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) an opinion a Borrowing Base Certificate calculated as of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)November 30, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2023;
(ixxi) a certificate from a Responsible Officer of the Borrower certifying that after giving pro forma effect to the transactions contemplated by this Agreement on the Effective Date that the Borrower will be Solvent;
(xii) a Compliance Certificate calculated on a proforma basis for the Borrower’s fiscal quarter ending September 30, 2023 (which calculations may be made using unaudited financial statements as of such date);
(xiii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiv) [intentionally omitted];
(xv) the Fee Letter;
(xvi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable at or prior to the Effective Date to the Administrative Agent, the Lead Arrangers Arrangers, and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxvii) a Compliance Certificate calculated as [intentionally omitted]
(xviii) UCC, tax, judgment and lien search reports with respect to the Borrower, and each other Loan Party in all necessary or appropriate jurisdictions;
(xix) [intentionally omitted];
(xx) [intentionally omitted];
(A) copies of satisfactory audited consolidated financial statements for the Borrower and its Subsidiaries for the three fiscal years most recently ended for which financial statements are available and interim unaudited financial statements for each quarterly period ended since the last audited financial statements for which financial statements are available, (B) pro forma consolidated financial statements for the Borrower and its Subsidiaries for the four-quarter period most recently ended prior to the Effective Date (for which financial statements are available giving pro forma effect to the financing evidenced by this Agreement transactions occurring on the Effective Date and the use a pro forma balance sheet of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective Borrower and its Subsidiaries as of the Agreement Date;
Effective Date giving pro forma effect to the transactions occurring on the Effective Date and (xiiiC) evidence projections prepared by management of repayment balance sheets, income statements and cash flow statements of the Borrower and its Subsidiaries, which will be quarterly for the first year after the Effective Date and annually thereafter through the Maturity Date (and which will not be inconsistent, in full any material respect, with information provided to the Administrative Agent prior to the delivery of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, ’s engagement letter with the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoAdministrative Agent); and
(xivxxii) Beneficial Ownership Certifications from the Borrower and such other documents, agreements and instruments Persons as the Administrative AgentAgent and Lenders shall reasonably require, or so long as any Lender through request for such Beneficial Ownership Certification is delivered in writing to the Administrative Agent, may reasonably request. The provisions of clauses Borrower at least five (iv5) through (viii) of Business Days prior to the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material SubsidiariesEffective Date.
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsDecember 31, budgets2022, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No [intentionally omitted];
(d) [intentionally omitted];
(e) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(df) The Parentthe Borrower, the Borrower other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eg) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information reasonably requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case writing at least five (5) Business Days prior to the Effective DateDate by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act;
(h) [intentionally omitted];
(i) [intentionally omitted]; and
(j) Parent shall have closed the IPO.
Appears in 1 contract
Initial Conditions Precedent. The effectiveness of this Agreement and obligation of the Lenders to effect make (or permit be deemed to make) the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.8;
(iii) the Facility Guaranty executed by each of the Parent and each Material Subsidiary existing as of other Person that the Borrower elects to make a Guarantor on the Effective Date;
(iv) an opinion of counsel to the certificate or Loan Parties, addressed to the Agent, the Lenders, in form and substance reasonably satisfactory to the Agent;
(v) the articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) Party, or, in the case of the Parent only, certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParent;
(vvi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party or its constituent partners or members authorized to execute and deliver the Loan Documents to which such Loan Party is a partyparty and, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower Notices then authorized to deliver the Notice of Borrowing, Notices of Conversion, Continuation and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of CreditConversion;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a certificate from a Responsible Officer of counsel the Parent and the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects and (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed y) immediately after giving effect to the Administrative Agent and the Lenders and covering such customary matters as may be required transactions contemplated by the Administrative Agentthis Agreement, no Default or Event of Default shall exist;
(ixx) evidence that the Fees then due and payable under Section 3.5.3.6, together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(xxi) a Compliance Certificate calculated as of the Effective Date June 30, 2018 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Effective Date);
(xixii) [reserved];
(xiiA) a Disbursement Instruction Agreement effective all documentation and other information about the Loan Parties as of shall have been reasonably requested by the Agreement Date;
(xiii) evidence of repayment in full of (x) Agent or any Lender that certain Term Loan Agreement dated as of May 3it shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, 2016including, by and among the Borrowerwithout limitation, the ParentPatriot Act and (B) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Effective Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the financial institutions from time condition set forth in this clause (B) shall be deemed to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretobe satisfied); and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and Parent or its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date since December 31, 2017 that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower and its the Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Parent, the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Samples: Term Loan Agreement (Piedmont Office Realty Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes, Tranche B Term Notes of each Class and Bid Rate Notes executed by the Borrower, payable to each applicable Lender of (including any Designated Lender, if applicable, and to the extent such Class (other than any Lender that has requested that it not required to receive a NoteNotes) and complying with the terms of Section 2.112.12.
(a) and a replacement the Swingline Note Notes executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date[reserved];
(iv) an opinion of counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, Continuation and to request issuance of Letters of CreditBid Rate Quote Requests;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate calculated on a pro forma basis for the Loan Parties four (other than any Accommodation Subsidiary that is not a Material Subsidiary)4) quarter fiscal period ending June 30, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2021;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) [reserved];
(xii) evidence that the Fees Fees, if any, then due and payable under Section 3.5.3.5.3, together with with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the reasonable and documented out -of -pocket fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parentthe Borrower, the Borrower other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which which, or the failure to make, give or receive which, would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Washington Real Estate Investment Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each applicable Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.112.10.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Dateother Guarantors initially to be a party thereto;
(iv) an opinion of legal counsel to the Borrower and the other Loan Parties, reasonably satisfactory to the Administrative Agent, addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit G;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate calculated on a pro forma basis for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Parent’s fiscal quarter ending September 30, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2010;
(ixx) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of if required by the Agreement DateAdministrative Agent, insurance certificates, or other evidence, providing that the insurance coverage required under Section 7.5. (including, without limitation, both property and liability insurance) is in full force and effect;
(xiii) evidence of repayment in full of (x) that certain Term all indebtedness, liabilities or obligations owing by the Loan Parties under the First Amended and Restated Credit Agreement dated as of May 3April 27, 2016, 2006 by and among the Borrower, the Parent“Lenders” party thereto and Xxxxx Fargo, the financial institutions from time as successor to time party theretoWachovia Bank, KeyBank National Association, as administrative agentagent for the “Lenders”, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; andshall have been paid in full;
(xiv) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, Agent may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect Effect, other than as previously disclosed to Administrative Agent and the Lenders in writing and approved by the Administrative Agent and Lenders in writing, or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The the Parent, the Borrower and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, bound except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its their respective obligations under the Loan Documents to which it is a party; and;
(eiv) The the Parent, the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender may request in order to comply with requirements the USA Patriot Act (Title III of any AntiPub. L. 107-Money Laundering Laws56 (signed into law October 26, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.2001)); and
(fv) Each there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDocuments.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each applicable Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.112.10.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) an opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel to the Parent, the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in a form acceptable to the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal year ending December 31, 2011;
(x) a Transfer Authorizer Designation Form effective as of counsel to the Agreement Date;
(xi) evidence that all indebtedness, liabilities or obligations owing by the Loan Parties (under the Existing Credit Agreement shall have been paid in full and all Liens securing such indebtedness, liabilities or other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agentobligations have been released;
(ixxii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxiii) a Compliance Certificate calculated as of insurance certificates, or other evidence, providing that the Effective Date insurance coverage required under Section 8.5. (giving pro forma effect to the financing evidenced by this Agreement including, without limitation, both property and the use of the proceeds of the Loans to be funded on the Agreement Date)liability insurance) is in full force and effect;
(xixiv) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoduly executed Officer’s Certificate; and
(xivxv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect effect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; andParty;
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements the USA Patriot Act (Title III of any AntiPub. L. 107-Money Laundering Laws56 (signed into law October 26, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.2001)); and
(fv) Each there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDocuments.
Appears in 1 contract
Samples: Credit Agreement (Saul Centers Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.8.(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Dateother Guarantors;
(iv) an opinion of counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in the form set forth in Exhibit H;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower the Notice of Borrowing and Notices of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence that the Fees then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (March 31, 2011 giving pro forma effect to the financing evidenced transactions contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date)Agreement;
(xi) [reserved];
(xiix) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixi) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, copies certified by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability Responsible Officer of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under Purchase Agreements and material related documents, in each case, as of the Loan Documents to which it is a party; and
(e) The Borrower Effective Date and each other Loan Party shall have provided to the Administrative Agent in form and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered substance reasonably satisfactory to the Administrative Agent, including without limitation, all amendments, supplements, exhibits and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.schedules thereto;
Appears in 1 contract
Samples: Term Loan Agreement (Equity Lifestyle Properties Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of CreditLoan, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Term Notes of each Class executed by the Borrower, payable to each applicable Lender of such Class (other than excluding any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.8.(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) an opinion of Bxxxx Xxxx LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and acceptable to the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party (with respect to Borrower and (y) by the Secretary or Assistant Secretary (or Trust Guarantor certified within the prior 75 days, and for all other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof Parties certified as of a date acceptable to the Agreement DateAdministrative Agent);
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date within the prior 75 days by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date within the prior 75 days by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending September 30, 2014, taking into account the amount of counsel the disbursement to be made on the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent Effective Date and the Lenders and covering such customary matters as may be required by outstanding balance under the Administrative AgentExisting Credit Agreement;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) the Fee Letter;
(xii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, pursuant to the terms hereof, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(dc) The Parentthe Borrower, the Borrower other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, required as of the Effective Date, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby as of the Effective Date without the occurrence of any material default under, conflict with or violation of (iA) any Applicable Law Laws or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(ed) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Dividend Capital Diversified Property Fund Inc.)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class (except for any Lender who has requested not to receive a promissory note), executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower;
(iii) the Facility Guaranty executed by each of the Parent and each Material Subsidiary existing as of other Person that the Borrower elects to make a Guarantor on the Effective Date;
(iv) an opinion of counsel to the certificate or Loan Parties, addressed to the Agent and the Lenders in form and substance reasonably satisfactory to the Agent;
(v) the articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) Party, or, in the case of the Parent only, certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParent;
(vvi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party or its constituent partners or members authorized to execute and deliver the Loan Documents to which such Loan Party is a partyparty and, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of ConversionBid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation, Continuation and Notices of Swingline Borrowing, Conversion and to request the issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a certificate from a Responsible Officer of counsel the Parent and the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects and (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed y) immediately after giving effect to the Administrative Agent and the Lenders and covering such customary matters as may be required transactions contemplated by the Administrative Agentthis Agreement, no Default or Event of Default shall exist;
(ixx) evidence that the Fees then due and payable under Section 3.5.3.6, together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(xxi) a Compliance Certificate calculated as of the Effective Date June 30, 2018 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Effective Date);
(xixii) [reserved]evidence that, simultaneously with the execution of this Agreement, the Existing Revolving Credit Agreement has been paid in full and that all commitments thereunder have been irrevocably terminated;
(xiiA) a Disbursement Instruction Agreement effective all documentation and other information about the Loan Parties as of shall have been reasonably requested by the Agreement Date;
(xiii) evidence of repayment in full of (x) Agent or any Lender that certain Term Loan Agreement dated as of May 3it shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, 2016including, by and among the Borrowerwithout limitation, the ParentPatriot Act and (B) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Effective Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the financial institutions from time condition set forth in this clause (B) shall be deemed to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretobe satisfied); and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and Parent or its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date since December 31, 2017 that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower and its the Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Parent, the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Samples: Revolving Credit Agreement (Piedmont Office Realty Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event initial disbursement of Loan proceeds hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) : The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(ia) counterparts of this Agreement executed by each of the parties hereto;
(iib) Notes of each Class executed by the Borrower, payable to each applicable Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.6;
(iiic) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(ivd) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may request, addressed to the Administrative Agent and the Lenders;
(e) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vf) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party within thirty (30) days of the date hereof, and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vig) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party Person authorized to execute and deliver the Loan Documents to which such Loan Party Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of CreditLoan Interest Rate Request Forms in the forms attached hereto as Exhibit C;
(viih) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiii) a Compliance Certificate and an opinion of counsel to Unencumbered Asset Value Certificate calculated on an estimated basis using financial information not yet finalized for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Borrower’s fiscal quarter ending December 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2011;
(ixj) evidence UCC, tax, judgment and lien search reports with respect to the Borrower in all necessary or appropriate jurisdictions indicating that there are no liens of record other than Permitted Liens;
(k) copies of all Specified Derivatives Contracts in existence on the Fees then due Agreement Date, and payable under Section 3.5., together with fully executed and completed Borrower Authorization Forms effective as of the Agreement Date;
(l) a complete listing of all other Subsidiaries which are Non-Guarantor Entities;
(m) intentionally omitted;
(n) intentionally omitted;
(o) all fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivp) such other documents, agreements agreements, and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Samples: Loan Agreement (Equity One, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a any Note) and complying with the terms of Section 2.11.
(a) and a replacement the Swingline Note Notes executed by the Borrower;
(iii) an opinion of Xxxxxxxx & Worcester LLP, and an opinion of Xxxx Xxxxx Xxxxxxxx & Xxxx LLP, special Maryland counsel, in each case, counsel to the Guaranty executed by each of Borrower and the Parent other Loan Parties, addressed to the Administrative Agent and each Material Subsidiary existing the Lenders and covering such matters as of the Effective DateAdministrative Agent may reasonably request;
(iv) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(v) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Revolving Borrowing, Notices of Conversion, Notices of ContinuationTerm Loan Borrowing, Notices of Swingline Borrowing, and to request issuance of requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(vii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion a Compliance Certificate calculated as of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not Effective Date on a Material Subsidiary)pro forma basis for the Borrower’s fiscal quarter ended September 30, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2018;
(ix) a Disbursement Instruction Agreement effective as of the Agreement Date;
(x) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved]if required by the Administrative Agent, insurance certificates, or other evidence, providing that the insurance coverage required under Section 7.5. (including, without limitation, both property and liability insurance) is in full force and effect;
(xii) each Loan Party or Subsidiary thereof that qualifies as a Disbursement Instruction Agreement effective as “legal entity customer” under the Beneficial Ownership Regulation shall, collectively, have delivered to the Administrative Agent, and any Lender requesting the same, one Beneficial Ownership Certification in relation to each such Loan Party or such Subsidiary, in each case, at least five (5) Business Days prior to the date of the Agreement Date;closing; and
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(e) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Patriot Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party on or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered prior to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five date which is three (53) Business Days prior to the Effective Date; and
(f) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (Government Properties Income Trust)
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, this Agreement is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower;
(iii) the The Guaranty executed by each of the Parent and each Material Subsidiary Guarantor existing as of the Effective Date;
(iii) Opinions of counsel to the Loan Parties, addressed to the Agent and the Lenders, addressing the matters set forth in Exhibit F;
(iv) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party, unless the articles of incorporation, articles of organization, certificates of limited partnership or other comparable organizational instruments (if any) of such Loan Party were previously delivered under the Existing Term Loan Agreement and (y) by have not been amended, restated, supplemented or otherwise modified since the date previously delivered thereunder and remain in full force and effect on the Agreement Date, in which case the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being may provide a true, correct and complete copy thereof as of the Agreement Datecertificate signed by such Person providing a certification to that effect;
(v) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the BorrowerBorrowers, authorized to execute and deliver on behalf the officers of the Borrower Representative then authorized to deliver Notices of Borrowing, Notices of Conversion, Continuation and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of CreditConversion;
(vii) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity entity, the copies of which, if previously delivered under the Existing Term Loan Agreement, may be certified by certifying that the copies of any of foregoing previously delivered to the Agent and the Lenders under the Existing Term Loan Agreement have not been amended, restated, supplemented or otherwise modified since the date previously delivered thereunder and that each remains in full force and effect as of the Agreement Date, so long as that is the case, and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence Evidence that the Fees then due and payable under Section 3.5.3.6 if any, together with all and any other feesFees, expenses and reimbursement reimbursable amounts due and payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, Effective Date for which invoices have been presented to the Borrowers at least 2 Business Days prior to the Effective Date have been paid;
(xix) a A Compliance Certificate calculated as of the Effective Date (September 30, 2012, after giving pro forma effect to the any financing evidenced contemplated by this Agreement and the Revolving Credit Agreement and the use of the proceeds of the Loans, if any, and of any Loans (as defined in the Revolving Credit Agreement) to be funded on the Agreement Effective Date and giving effect to the Borrowing Base Asset Pool as of the Effective Date);
(x) A Borrowing Base Certificate dated as of the Effective Date;
(xi) [reserved]Such due diligence (including lien searches and/or title reports) with respect to the Borrowing Base Assets Pool as the Agent on behalf of the Lenders may reasonably request;
(xii) a Disbursement Instruction Agreement A Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) Evidence that certain Term Loan the Revolving Credit Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties theretoLoan Documents (as defined in the Revolving Credit Agreement) to be executed and delivered as a condition to the effectiveness of the Revolving Credit Agreement, as amended shall have been duly executed and delivered by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 each party thereto and (y) that certain Term Loan Agreement dated as of April 26, 2017, by shall be in full force and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; andeffect;
(xiv) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of request consistent with the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.items required under the Existing Term Loan Agreement; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower Trust and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower Borrowers or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower Trust and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i1) any Applicable Law or (ii2) any agreement, document or instrument to which any Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the any Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents; and
(ev) The Borrower Borrowers and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements the USA Patriot Act (Title III of any AntiPub. L. 107-Money Laundering Laws56 (signed into law October 26, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations2001)).
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class and Bid Rate Notes executed by the Borrower, payable to each applicable Lender of such Class (other than including any Designated Lender, if applicable but excluding any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.112.12.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date[reserved];
(iv) an opinion of counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, Continuation and to request issuance of Letters of CreditBid Rate Quote Requests;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion [reserved];
(x) a Disbursement Instruction Agreement effective as of counsel to the Agreement Date;
(xi) evidence that all indebtedness, liabilities or obligations owing by the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to under the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative AgentExisting Credit Agreement shall have been paid in full;
(ixxii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the reasonable and documented out-of-pocket fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parentthe Borrower, the Borrower other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which which, or the failure to make, give or receive which, would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Washington Real Estate Investment Trust)
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, this Agreement is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, a Note payable to each Lender of such Class not party to the Third Amended Credit Agreement and a replacement Note payable to each Lender whose Commitment is being increased pursuant to this Agreement (other than excluding, in each case, any Lender that has requested that it not receive a Note) and ), in each case complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.13(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(ivA) an opinion of Polsinelli PC, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of organization or formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DatePerson;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party Person is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party Person authorized to execute and deliver the Loan Documents to which such Loan Party Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan PartyPerson, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Parent Guarantor’s fiscal quarter ended December 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2014;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxii) a Compliance Certificate calculated evidence reasonably satisfactory to the Administrative Agent that (A) all accrued and unpaid interest, fees and expenses under the Third Amended Credit Agreement shall have been fully paid, the commitments thereunder shall be amended and restated as of the Effective Date date hereof as set forth on Schedule 1 hereto, and any and all Liens thereunder have been terminated and released and (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xiB) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment each Departing Lender shall have received payment in full of (x) that certain Term Loan Agreement dated as all of May 3, 2016, by and among the Borrower, “Obligations” under the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Third Amended Credit Agreement dated (other than obligations to pay fees and expenses with respect to which the Borrower has not received an invoice, contingent indemnity obligations and other contingent obligations owing to it under the “Loan Documents” as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among defined in the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoThird Amended Credit Agreement); and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There No Default or Event of Default shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effectexist;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations., including without limitation, the Patriot Act; and
(fd) Each The representations and warranties made or deemed made by the Borrower and each other Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under in this Agreement and in the Beneficial Ownership Regulation other Loan Documents delivered pursuant to Section 6.1 shall have delivered to the Administrative Agent, be true and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Datecorrect.
Appears in 1 contract
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, this Agreement is subject to the satisfaction or waiver of the following conditions precedent:precedent (the date of the satisfaction or waiver of the conditions set forth in this Section 6.1, the “Effective Date”):
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) to the extent requested by each Lender, Notes of each Class executed by the Borrower, payable to each applicable Lender of such Class (other than but excluding any Lender that has requested that it not to receive a NoteNotes) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.12(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateXxxxxx REIT;
(iv) an opinion of (A) Xxxxxx & Xxxxxxx LLP, special counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters reasonably required by Administrative Agent and (B) Xxxxxxx LLP, Maryland counsel to the Borrower and Xxxxxx REIT, addressed to the Administrative Agent and the Lenders and covering the matters reasonably required by the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party issued within thirty (30) days of the date hereof and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated on a pro forma basis (taking into account the Unencumbered Pool Properties as of counsel the Agreement Date) for the Borrower’s fiscal quarter ending June 30, 2015;
(x) a Disbursement Instruction Agreement effective as of the Effective Date;
(xi) copies of all Material Contracts in existence on the Agreement Date not previously delivered to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ixxii) evidence that the Fees then due and payable under Section 3.5., together with Fee Letter;
(xiii) all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the LendersLenders for which an invoice has been provided at least three (3) Business Days prior to the date hereof, including including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxiv) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement extent not previously delivered to Administrative Agent, insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 (including, without limitation, both property and the use of the proceeds of the Loans to be funded on the Agreement Date)liability insurance) is in full force and effect;
(xixv) [reserved];
(xii) a Disbursement Instruction Agreement effective as UCC, tax, judgment and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions indicating that there are no liens of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the record other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretothan Permitted Liens; and
(xivxvi) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions a complete listing of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation all Subsidiaries that which are not also Material SubsidiariesGuarantors.
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsDecember 31, budgets2014, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Antiapplicable “know your customer” and anti-Money Laundering Lawsmoney laundering rules and regulations, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsUSA Patriot Act.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Hudson Pacific Properties, L.P.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each applicable Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.8.(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) an opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit G;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party, or in the case of any Loan Party (other than the Borrower) that is a party to the Existing Credit Agreement and (y) by has not altered its organizational instrument since the date such Loan Party became a party to the Existing Credit Agreement, a certificate from the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of certifying that there have been no changes to the Agreement Dateorganizational instrument delivered by such Loan Party in connection with the Existing Credit Agreement;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party the Borrower issued as of a recent date by the Secretary of State of the its state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certification from the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party that each Loan Party is in good standing under the laws of its respective state of formation and is qualified to transact business in each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notice of Borrowing and Notices of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity entity, or in the case of any Loan Party that is a party to the Existing Credit Agreement and has not altered its by-laws, operating agreement, partnership agreement or other comparable document since the date such Loan Party became a party to the Existing Credit Agreement, a certificate from the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party certifying that there have been no changes to the by-laws, operating agreement, partnership agreement or other comparable document delivered by such Loan Party in connection with the Existing Credit Agreement; and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) an opinion a copy of counsel the compliance certificate for the Borrower’s fiscal quarter ending September 30, 2011, delivered pursuant to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative AgentExisting Credit Agreement;
(ixxi) the Notice of Borrowing from the Borrower for the Loans indicating how the proceeds thereof are to be made available to the Borrower, and if any of the Loans initially are to be LIBOR Loans, the Interest Period therefor;
(xii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, Agent and the Lead Arrangers and any of the LendersArrangers, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT USA Patriot Act and any applicable “know your customer” rules and regulations.; and
(fv) Each Loan Party there shall not have occurred or Subsidiary thereof exist any circumstance, change or condition in the loan syndication, financial or capital markets generally that qualifies as a “legal entity customer” under could reasonably be expected to materially impair the Beneficial Ownership Regulation shall have delivered to arrangement of the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Datecredit facility contemplated by this Agreement.
Appears in 1 contract
Samples: Term Loan Agreement (Federal Realty Investment Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of Loans on the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Effective Date is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.10.(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors, if any, initially required to be a party thereto pursuant to Section 7.13.;
(iv) an opinion of Xxxxxxxx & Worcester LLP, and an opinion of Xxxx Xxxxx LLP, special Maryland counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices the Notice of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated as of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not Effective Date on a Material Subsidiary)pro forma basis for the Borrower’s fiscal quarter ending June 30, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2015;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) the Notice of Borrowing from the Borrower requesting the Loans;
(xii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, the Borrower Letter executed by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (Ax) have a Material Adverse Effect, or (By) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(e) there shall not have occurred or exist any material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents; and
(ef) The the Borrower and each other Loan Party shall have provided to all information requested in writing by the Administrative Agent and each Lender at least five Business Days prior to the Lenders the documentation and other information requested by the Administrative Agent Effective Date in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Samples: Term Loan Agreement (Senior Housing Properties Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes, Term Notes of each Class and Bid Rate Notes executed by the Borrower, payable to each applicable Lender of such Class (other than including any Designated Lender, if applicable but excluding any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.112.12.
(a) and a replacement the Swingline Note Notes executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date[reserved];
(iv) an opinion of counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, Continuation and to request issuance of Letters of CreditBid Rate Quote Requests;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal year ending December 31, 2017;
(x) a Disbursement Instruction Agreement effective as of counsel to the Agreement Date;
(xi) evidence that all indebtedness, liabilities or obligations owing by the Loan Parties under the 2016 Term Loan Agreement shall have been refinanced (other than any Accommodation Subsidiary that is not a Material Subsidiary)or, addressed in the case of interest and fees accrued thereunder, paid in full) pursuant to the Administrative Agent this Agreement and the Lenders and covering such customary matters as may be required by the Administrative Agent2016 Term Loan Agreement shall have been terminated;
(ixxii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the reasonable and documented out-of-pocket fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parentthe Borrower, the Borrower other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which which, or the failure to make, give or receive which, would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Washington Real Estate Investment Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event initial disbursement of Loan proceeds hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) : The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(ia) counterparts of this Agreement executed by each of the parties hereto;
(iib) Notes of each Class executed by the Borrower, payable to each applicable Lender and complying with the terms of such Class (other than Section 2.6, but excluding any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the BorrowerNotes;
(iiic) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(ivd) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may request, addressed to the Administrative Agent and the Lenders;
(e) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vf) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party within thirty (30) days of the date hereof, and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vig) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party Person authorized to execute and deliver the Loan Documents to which such Loan Party Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of CreditLoan Interest Rate Request Forms in the forms attached hereto as Exhibit C;
(viih) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiii) a Compliance Certificate and an opinion of counsel to Unencumbered Asset Value Certificate calculated on an estimated basis using financial information not yet finalized for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Borrower’s fiscal quarter ending September 30, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2014;
(ixj) evidence UCC, tax, judgment and lien search reports with respect to the Borrower in all necessary or appropriate jurisdictions indicating that there are no liens of record other than Permitted Liens;
(k) copies of all Specified Derivatives Contracts in existence on the Fees then Agreement Date, and fully executed and completed Borrower Authorization Forms effective as of the Agreement Date;
(l) a complete listing of all Subsidiaries which are Non-Guarantor Entities;
(m) Borrower shall have paid to Administrative Agent, for the benefit of Lenders, all interest and other fees due and payable under Section 3.5.the Existing Credit Agreement, together with prorated to the Effective Date;
(n) Lenders, as applicable, shall have completed whatever balancing transfers amongst themselves as are necessary in order to result in each Lender having the outstanding balances referenced on Schedule 1.4 attached hereto;
(o) all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivp) such other documents, agreements agreements, and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Samples: Loan Agreement (Equity One, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is and the effectiveness of the amendment, restatement and consolidated of the Existing Agreements, are subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.11.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateParent;
(iv) an opinion of counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in the form set forth in Exhibit J;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Revolving Borrowing, Notices the Notice of Conversion, Notices of ContinuationTerm Borrowing, Notices of Swingline Borrowing, and to request issuance of requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated as of counsel March 31, 2014 giving pro forma effect to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required transactions contemplated by the Administrative Agentthis Agreement;
(ixx) a completed Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of evidence that all accrued and unpaid interest and fees owing by the Agreement Date;
(xiii) evidence of repayment Loan Parties under the Existing Agreements have been paid in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretofull; and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There since December 31, 2013, there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation event or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date condition that has had or could reasonably be expected to result in have a Material Adverse Effect; provided that the Administrative Agent and the Lenders agree that the outstanding verdict and any judgment in the California Hawaiian Case shall not constitute a Material Adverse Effect unless (i) such judgment or any resulting order shall have continued for a period of 30 days without being paid, stayed or dismissed through appropriate proceedings and (ii) the aggregate amount awarded in connection with such verdict and/or judgment exceeds $120,000,000;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect (the Administrative Agent and the Lenders agree that the outstanding verdict and any judgment in the California Hawaiian Case shall not constitute a Material Adverse Effect unless (x) such judgment or any resulting order shall have continued for a period of 30 days without being paid, stayed or dismissed through appropriate proceedings and (y) the aggregate amount awarded in connection with such verdict and/or judgment exceeds $120,000,000) or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The the Parent, the Borrower Borrower, the other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (Ax) have a Material Adverse Effect, or (By) restrain or enjoin or impose materially burdensome conditions onenjoin, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations.
, including without limitation, the Patriot Act. The Administrative Agent shall give notice (fwhich may be by electronic mail or other similar means of electronic communication) Each Loan Party or Subsidiary thereof to the Borrower and the Lenders promptly upon is determination that qualifies as a “legal entity customer” under all of the Beneficial Ownership Regulation conditions precedent set forth in this Section shall have delivered to been fulfilled or waived by all of the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateLenders.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each applicable Lender of such Class (other than but excluding any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.12(a);
(iii) the Subsidiary Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) an opinion of counsel to the Borrower and such other Loan Parties as Administrative Agent may request, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices requests for Letters of ConversionCredit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Borrowing Base Certificate calculated as of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative AgentEffective Date;
(ixx) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2015;
(xi) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xii) copies of all Material Contracts and Specified Derivatives Contracts in existence on the Agreement Date;
(xiii) the Fee Letter;
(xiv) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxv) a Compliance Certificate calculated as of evidence that all indebtedness, liabilities or obligations owing by the Effective Date (giving pro forma effect to Loan Parties under the financing evidenced by this Existing Credit Agreement shall have been paid in full and the use of the proceeds of the Loans to be funded on the Agreement Date)all Liens securing such indebtedness, liabilities or other obligations have been released;
(xixvi) [reserved]with respect to each Borrowing Base Property identified on Schedule 4.1, each of the items referred to in Section 6.3 required to be delivered in connection with any Borrowing Base Property;
(xiixvii) a Disbursement Instruction Agreement effective as UCC, tax, judgment and lien search reports with respect to the Borrower, each other Loan Party and each Property in the Minimum Land Collateral in all necessary or appropriate jurisdictions indicating that there are no liens of the Agreement Daterecord on such property other than Permitted Liens;
(xiiixviii) evidence of repayment insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 is in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by force and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoeffect; and
(xivxix) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parentthe Borrower, the Borrower other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (LGI Homes, Inc.)
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as this Agreement and the making of a Loan or the issuance of a Letter of Credit, Loans on the Effective Date hereunder is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, a Note payable to each Lender of such Class (other than any Lender that has requested that it not receive requesting a Note) Note prior to the Effective Date pursuant to and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.13(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(ivA) an opinion of Polsinelli PC, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of organization or formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DatePerson;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party Person is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party Person authorized to execute and deliver the Loan Documents to which such Loan Party Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices the Notice of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan PartyPerson, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Parent Guarantor’s fiscal quarter ended March 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2017;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxii) a Compliance Certificate calculated as of an amendment to Revolving Credit Agreement, executed by the Effective Date (giving pro forma requisite parties, which amendment shall, inter alia, permit the term loan facility evidenced hereby and effect changes to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Revolving Credit Agreement dated as which conform with the applicable terms of April 26this Agreement, 2017 all in form and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among substance reasonably satisfactory to the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoAdministrative Agent; and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There no Default or Event of Default shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effectexist;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act;
(d) the representations and warranties made or deemed made by the Borrower and each other Loan Party in this Agreement and in the other Loan Documents delivered pursuant to Section 6.1 shall be true and correct; and
(e) the Administrative Agent shall have received a timely Notice of Borrowing. Each Credit Event shall constitute a certification by the Borrower to the effect set forth in clauses (b), (d) and (e) (both as of the date of the giving of notice relating to such Credit Event and, unless the Borrower otherwise notifies the Administrative Agent prior to the date of such Credit Event, as of the date of the occurrence of such Credit Event). In addition, the Borrower shall be deemed to have represented to the Administrative Agent and the Lenders at the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each time such Loan Party or Subsidiary thereof is made that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered all conditions to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to making of such Loan Party or such Subsidiary, contained in each case at least five (5) Business Days prior to the Effective Datethis Article VI have been satisfied.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Term Loans is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Term Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.112.8.
(a) and a replacement Swingline Note executed by the Borrower;
(iii) the The Guaranty executed by each of the Parent and each Material Subsidiary other Guarantor existing as of the Effective Date;
(iv) The Pledge Agreement executed by the certificate or Borrower and the Pledgors;
(v) An opinion of counsel to the Loan Parties, addressed to the Agent and, the Lenders, addressing the matters set forth in Exhibit D;
(vi) The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified (x) as of a recent date by the Secretary of State (or comparable official) of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State (or comparable official) of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (or comparable official and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Conversion, Continuation and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of CreditConversion;
(viiix) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) an opinion The results of counsel a recent UCC, tax, judgment and lien search in each of the jurisdictions in which UCC financing statements or other filings or recordations should be made to evidence or perfect security interests in Collateral being granted under the Pledge Agreement as of the Effective Date, and such search shall reveal no Liens of record with respect to any of such Collateral other than Liens to be terminated prior to the Loan Parties (Effective Date or other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed Liens acceptable to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ixxi) Each document (including, without limitation, any UCC financing statement) required by the Pledge Agreement or under Applicable Law or reasonably deemed necessary or appropriate by the Agent to be filed, registered or recorded in order to create in favor of the Agent, for the benefit of the Lenders, a perfected first-priority Lien on the Collateral described therein, shall have been filed, registered or recorded or shall have been delivered to the Agent and be in proper form for filing, registration or recordation;
(xii) All certificates, if any, representing any shares of Equity Interests pledged pursuant to the Pledge Agreement, together with an undated transfer power for each such certificate executed in blank by a duly authorized officer or agent of the Loan Party with rights in such Equity Interest, together with an Acknowledgment and Consent, substantially in the form of Schedule 2 to the Pledge Agreement, duly executed by the issuer of such Equity Interest;
(xiii) Evidence that title to the Bridge Loan Properties is owned by the Property Owners, which evidence may include copies of owner’s title policies of insurance (or commitments to issue the same) issued as of a recent date showing fee simple title to the Bridge Loan Properties being vested in the applicable Property Owners;
(xiv) A certificate of the chief executive officer, chief financial officer or other senior officer of the Parent certifying that all conditions precedent in the Purchase Agreement to the closing of the Acquisition (other than the payment of the Purchase Price (as defined in the Purchase Agreement)) have been satisfied;
(xv) The Fees then due and payable under Section 3.53.6., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(xxvi) a A Compliance Certificate calculated as of the Effective Date June 30, 2007 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Effective Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxvii) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its the other Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (U-Store-It Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) : The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(ia) counterparts of this Agreement executed by each of the parties hereto;
(iib) Revolving Notes of each Class and Bid Rate Notes executed by the Borrower, payable to each applicable Lender of such Class (other than including any Lender that has requested that it not receive a NoteDesignated Lender, if applicable) and complying with the terms of Section 2.11.
(a2.13(a) and a replacement the Swingline Note executed by the Borrower;
(iiic) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(ivd) an opinion of counsel to the Borrower and such other Loan Parties as the Administrative Agent may request, addressed to the Administrative Agent and the Lenders;
(e) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vf) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party within thirty (30) days of the date hereof, and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vig) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party Person authorized to execute and deliver the Loan Documents to which such Loan Party Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of ContinuationConversion, and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viih) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiii) a Compliance Certificate and an opinion of counsel to Unencumbered Asset Value Certificate calculated on a pro forma basis for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Borrower’s fiscal quarter ending June 30, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2011;
(ixj) evidence UCC, tax, judgment and lien search reports with respect to the Borrower in all necessary or appropriate jurisdictions indicating that there are no liens of record other than Permitted Liens;
(k) copies of all Specified Derivatives Contracts in existence on the Fees then Agreement Date a Transfer Authorizer Designation Form effective as of the Agreement Date;
(l) a complete listing of all Subsidiaries which are Non-Guarantor Entities;
(m) Borrower shall have paid to Administrative Agent, for the benefit of Lenders, all interest and other fees due and payable under Section 3.5.the Existing Credit Agreement, together with prorated to the Effective Date;
(n) Lenders, as applicable, shall have completed whatever balancing transfers amongst themselves as are necessary in order to result in each Lender having the outstanding balances referenced on Schedule 1.6 attached hereto;
(o) all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivp) such other documents, agreements agreements, and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Equity One, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent::
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent::
(i) counterparts of this Agreement executed by each of the parties hereto;;
(ii) Notes (or replacement Notes, as the case may be) of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) Note of such Class, and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower;;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Dateother Guarantors initially to be a party thereto;
(iv) an opinion of Xxxx Xxxxxxxx LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement Date;Party;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of Credit;Continuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;;
(ix) a Compliance Certificate calculated on a pro forma basis for the previous four calendar quarters ending on March 31, 2022;
(x) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) evidence that the Fees “Term Loans” as defined under the Existing Credit Agreement, have been paid in full;
(xii) copies of all Material Contracts in existence on the Agreement Date;
(xiii) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;;
(xxiv) certificates of insurance evidencing the insurance then in effect with respect to the Properties and otherwise in compliance with Section 8.5.;
(xv) a Compliance Certificate calculated certificate by a Responsible Officer of the Borrower certifying that, as of the Effective Date, (i) the Security Release Date (giving pro forma effect to under the financing evidenced by this Existing Credit Agreement and the use Senior Notes Agreement occurred, (ii) the Covenant Relief Period under the Existing Credit Agreement and the Senior Notes Agreement has ended, (iii) the Covenant Threshold Adjustment Period under the Existing Credit Agreement and the Senior Notes Agreement has ended and (iv) the Senior Notes are unsecured obligations of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, Borrower and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, obligors thereunder and the other parties theretomandatory prepayment provisions under the Senior Notes are no longer operable; and
(xivxvi) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;materially adverse effect on the business, assets, liabilities, condition (financial or otherwise), results of operations or business prospects of the Parent, the Borrower and the Subsidiaries taken as a whole;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;;
(d) The the Parent, the Borrower Borrower, the other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making ;
(e) there shall not have occurred or giving exist any other material disruption of which would not financial or capital markets that could reasonably be likely expected to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under transactions contemplated by the Loan Documents to which it is a partyDocuments; and
(ef) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information reasonably requested by the Administrative Agent and each Lender in order to comply with requirements of any applicable “know your customer” and Anti-Money Laundering Laws, including, including without limitation, the PATRIOT Act Patriot Act; and any applicable “know your customer” rules and regulations.
(fg) Each each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall shall, collectively, have delivered to the Administrative Agent, and any Lender requesting the same, a one Beneficial Ownership Certification in relation to each such Loan Party or such Subsidiary, in each case case, at least five (5) Business Days prior to the Effective Date..
Appears in 1 contract
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, this Agreement is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, a Note payable to each Lender of such Class not party to the Fourth Amended Credit Agreement and a replacement Note payable to each Lender whose Commitment is being increased pursuant to this Agreement (other than excluding, in each case, any Lender that has requested that it not receive a Note) and ), in each case complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.14(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) an opinion of Xxxxxxxxxx PC, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of organization or formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DatePerson;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party Person is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party Person authorized to execute and deliver the Loan Documents to which such Loan Party Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan PartyPerson, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Parent Guarantor’s fiscal quarter ended March 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2018;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxii) a Compliance Certificate calculated evidence reasonably satisfactory to the Administrative Agent that (A) all accrued and unpaid interest, fees and expenses under the Fourth Amended Credit Agreement shall have been fully paid, the commitments thereunder shall be amended and restated as of the Effective Date date hereof as set forth on Schedule 1 hereto, and any and all Liens thereunder have been terminated and released and (giving pro forma effect B) the Term Loan Agreement has been amended with the consent of the “Required Lenders” under (and as defined in) the Term Loan Agreement effecting certain changes to such agreement which conform with the financing evidenced by applicable terms of this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Dateother relevant Loan Documentation;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There a certificate signed by a Responsible Officer of each Loan Party certifying that no Default or Event of Default shall not have occurred exist and the representations and warranties made or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, deemed made by the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any each other Loan Party to fulfill its obligations under in this Agreement and in the other Loan Documents delivered pursuant to which it is a party;
(d) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as Section 6.1 of this Agreement shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings true and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a partycorrect; and
(ei) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations.
, including without limitation, the Patriot Act and (fii) Each Loan Party or Subsidiary thereof that to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative AgentRegulation, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days days prior to the Effective Date, any Lender that has requested, in a written notice to the Borrower at least ten (10) days prior to the Effective Date, a Beneficial Ownership Certification, in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent Guarantor and by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors identified in Schedule 1.1.;
(iv) an opinion of Xxxxx Lovells LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument document (if any) of each Loan Party certified (x) as of a recent date after the IPO Date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date after the IPO Date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion evidence of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be insurance required by the Administrative Agentunder Section 8.5.;
(ixx) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate calculated on a pro forma basis for the Parent Guarantor as of the IPO Date, after giving effect to the receipt of the proceeds of the IPO, the repayment of Indebtedness and related transactions;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There The IPO shall have been completed and the proceeds thereof shall have been used, among other things, to repay Indebtedness of the Parent Guarantor or its Subsidiaries of not less than $400,000,000, and the Administrative Agent shall have received satisfactory written evidence thereof; and
(c) The Parent Guarantor’s common shares shall be traded on the New York Stock Exchange, and the Administrative Agent shall have received satisfactory written evidence thereof; and
(d) In the good faith and reasonable judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower and its Subsidiaries the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower and each other Loan Party the Lenders shall have received and verified all information provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” for under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five USA Patriot Act of 2001 (5) Business Days prior to the Effective DatePublic Law 107-56).
Appears in 1 contract
Samples: Credit Agreement (RLJ Lodging Trust)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Lenders to effect or permit advance the occurrence of Loans on the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of CreditEffective Date, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties heretohereto (which, subject to Section 12.14, may include any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page);
(ii) Term Notes of each Class (except for any Lender who has requested not to receive a promissory note), executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower;
(iii) the Facility Guaranty executed by each of the Parent and each Material Subsidiary existing as of other Person that the Borrower elects to make a Guarantor on the Effective Date;
(iv) an opinion of counsel to the certificate or Loan Parties, addressed to the Agent and the Lenders in form and substance reasonably satisfactory to the Agent;
(v) the articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) Party, or, in the case of the Parent only, certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParent;
(vvi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party or its constituent partners or members authorized to execute and deliver the Loan Documents to which such Loan Party is a partyparty and, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and then authorized to request issuance of Letters of Creditdeliver Loan Notices;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a certificate from a Responsible Officer of counsel the Parent and the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects and (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed y) immediately after giving effect to the Administrative Agent and the Lenders and covering such customary matters as may be required transactions contemplated by the Administrative Agentthis Agreement, no Default or Event of Default shall exist;
(ixx) evidence that the Fees then due and payable under Section 3.5., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(xxi) a Compliance Certificate calculated as of the Effective Date September 30, 2022 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Effective Date);
(xiA) [reserved];
(xii) a Disbursement Instruction Agreement effective all documentation and other information about the Loan Parties as of shall have been reasonably requested by the Agreement Date;
(xiii) evidence of repayment in full of (x) Agent or any Lender that certain Term Loan Agreement dated as of May 3it shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, 2016including, by and among the Borrowerwithout limitation, the ParentPatriot Act and (B) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Effective Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the financial institutions from time condition set forth in this clause (B) shall be deemed to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretobe satisfied); and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and Parent or its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date since December 31, 2021 that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower and its the Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Parent, the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents; and
(ec) The representations and warranties made or deemed made by the Parent, the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall have provided to be true and correct in all material respects (or, in the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements case of any Anti-Money Laundering Lawssuch representation or warranty already qualified by materiality, including, without limitation, in all respects) on and as of the PATRIOT Act and any applicable “know your customer” rules and regulationsdate of the making of such Loan.
(fd) Each No Default or Event of Default shall exist, or would result from such proposed Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under from the Beneficial Ownership Regulation shall have delivered to application of the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Dateproceeds thereof.
Appears in 1 contract
Samples: Term Loan Agreement (Piedmont Office Realty Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, initial Loans hereunder is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than excluding any Lender that has requested that it not receive a Note) executed by the Borrower, payable to each applicable Lender and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.10.(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Dateother Guarantors (if any) initially to be a party thereto;
(iv) an opinion of Vaisey, Xxxxxxxxx & Xxxxxxxx PLLC, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party Person and (y) certified as true, complete and correct copies by the Secretary or Assistant Secretary (or other individual performing similar functions) of such the applicable Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Borrower, Notices of Term Loan Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent[Intentionally Omitted];
(ixx) a Compliance Certificate calculated on a pro forma basis for the Parent’s fiscal quarter ending September 30, 2018;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxii) a Compliance Certificate calculated as the Notice of Term Loan Borrowing from the Effective Date (giving pro forma effect Borrower requesting Loans and indicating how the proceeds thereof are to be made available to the financing evidenced by this Agreement Borrower, and the use of the proceeds if any of the Loans initially are to be funded on LIBOR Loans, the Interest Period thereof;
(xiii) evidence that all indebtedness, liabilities or obligations owing under the Existing Term Loan Agreement has been paid in full, all Liens securing such indebtedness, liabilities or obligations (if any) have been released, and all commitments under such Existing Term Loan Agreement have been terminated or expired;
(xiv) upon the reasonable request of any Lender made at least five (5) Business Days prior to the Agreement Date);
, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and Anti-Money-Laundering Laws, including, without limitation, the Patriot Act, in each case at least three (xi3) [reserved];
(xii) a Disbursement Instruction Agreement effective as of Business Days prior to the Agreement Date;
(xiiixv) evidence of repayment in full of At least five (x5) that certain Term Loan Business Days prior to the Agreement dated as of May 3, 2016, by and among the BorrowerDate, the ParentBorrower shall deliver, the financial institutions from time to time party theretoeach Lender that so requests, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoa Beneficial Ownership Certification; and
(xivxvi) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The the Parent, the Borrower Borrower, the other Loan Parties, and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other shall have received all information requested by the Administrative Agent and each Lender in order to comply with requirements of any applicable “know your customer” and Anti-Money Laundering Laws, including, including without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.Patriot Act; and
(fv) Each there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Party Documents. Without limiting the generality of the provisions of Section 12.5, for purposes of determining compliance with the conditions precedent set forth in this Section 6.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or Subsidiary thereof that qualifies as accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a “legal entity customer” under Lender unless the Beneficial Ownership Regulation Administrative Agent shall have delivered to the Administrative Agent, and any received notice from such Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the proposed Effective DateDate specifying its objection thereto.
Appears in 1 contract
Initial Conditions Precedent. The effectiveness of this Agreement and obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.8;
(iii) the Facility Guaranty executed by each of the Parent and each Material Subsidiary existing as of other Person that the Borrower elects to make a Guarantor on the Effective Date;
(iv) an opinion of counsel to the certificate or Loan Parties, addressed to the Agent, the Lenders, in form and substance reasonably satisfactory to the Agent;
(v) the articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) Party, or, in the case of the Parent only, certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParent;
(vvi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party or its constituent partners or members authorized to execute and deliver the Loan Documents to which such Loan Party is a partyparty and, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Conversion, Continuation and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of CreditConversion;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a certificate from a Responsible Officer of counsel the Parent and the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects and (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed y) immediately after giving effect to the Administrative Agent and the Lenders and covering such customary matters as may be required transactions contemplated by the Administrative Agentthis Agreement, no Default or Event of Default shall exist;
(ixx) evidence that the Fees then due and payable under Section 3.5.3.6, together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(xxi) a Compliance Certificate calculated as of September 30, 2019 (and, if any Loans are funded on the Effective Date (giving Date, updated to give pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the any Loans to be funded on the Agreement Effective Date);
(xixii) [reserved];
(xiiA) a Disbursement Instruction Agreement effective all documentation and other information about the Loan Parties as of shall have been reasonably requested by the Agreement Date;
(xiii) evidence of repayment in full of (x) Agent or any Lender that certain Term Loan Agreement dated as of May 3it shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, 2016including, by and among the Borrowerwithout limitation, the ParentPatriot Act and (B) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Effective Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the financial institutions from time condition set forth in this clause (B) shall be deemed to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretobe satisfied); and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and Parent or its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date since December 31, 2018 that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower and its the Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Parent, the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Samples: Term Loan Agreement (Piedmont Office Realty Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each applicable Lender of such Class (other than but excluding any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.11.
(a2.12(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date[intentionally omitted];
(iv) [intentionally omitted];
(v) one or more opinions of counsel to the Borrower and such other Loan Parties as the Administrative Agent may request, addressed to the Administrative Agent and the Lenders;
(vi) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of incorporation or formation of each such Loan Party Party, as applicable, and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, Borrowing and to request issuance of requests for Letters of Credit;
(viiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) an opinion a Borrowing Base Certificate calculated as of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to last day of the Administrative Agent and calendar month preceding the Lenders and covering such customary matters as may be required by month in which the Administrative AgentEffective Date occurs;
(ixxi) a certificate from a Responsible Officer of the Borrower certifying that after giving pro forma effect to the transactions contemplated by this Agreement on the Effective Date that the Borrower will be Solvent;
(xii) a Compliance Certificate calculated on a proforma basis for the Borrower’s fiscal quarter ending September 30, 2023 (which calculations may be made using unaudited financial statements as of such date);
(xiii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiv) [intentionally omitted];
(xv) the Fee Letter;
(xvi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable at or prior to the Effective Date to the Administrative Agent, the Lead Arrangers Arrangers, and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxvii) a Compliance Certificate calculated as [intentionally omitted]
(xviii) UCC, tax, judgment and lien search reports with respect to the Borrower, and each other Loan Party in all necessary or appropriate jurisdictions;
(xix) [intentionally omitted];
(xx) [intentionally omitted];
(A) copies of satisfactory audited consolidated financial statements for the Borrower and its Subsidiaries for the three fiscal years most recently ended for which financial statements are available and interim unaudited financial statements for each quarterly period ended since the last audited financial statements for which financial statements are available, (B) pro forma consolidated financial statements for the Borrower and its Subsidiaries for the four-quarter period most recently ended prior to the Effective Date (for which financial statements are available giving pro forma effect to the financing evidenced by this Agreement transactions occurring on the Effective Date and the use a pro forma balance sheet of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective Borrower and its Subsidiaries as of the Agreement Date;
Effective Date giving pro forma effect to the transactions occurring on the Effective Date and (xiiiC) evidence projections prepared by management of repayment balance sheets, income statements and cash flow statements of the Borrower and its Subsidiaries, which will be quarterly for the first year after the Effective Date and annually thereafter through the Maturity Date (and which will not be inconsistent, in full any material respect, with information provided to the Administrative Agent prior to the delivery of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, ’s engagement letter with the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoAdministrative Agent); and
(xivxxii) Beneficial Ownership Certifications from the Borrower and such other documents, agreements and instruments Persons as the Administrative AgentAgent and Lenders shall reasonably require, or so long as any Lender through request for such Beneficial Ownership Certification is delivered in writing to the Administrative Agent, may reasonably request. The provisions of clauses Borrower at least five (iv5) through (viii) of Business Days prior to the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material SubsidiariesEffective Date.
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsDecember 31, budgets2022, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No [intentionally omitted];
(d) [intentionally omitted];
(e) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(df) The Parentthe Borrower, the Borrower other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eg) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information reasonably requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case writing at least five (5) Business Days prior to the Effective DateDate by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act;
(h) [intentionally omitted];
(i) [intentionally omitted]; and
(j) Parent shall have closed the IPO.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes, Term Notes of and Bid Rate Notes (or, in each Class case, replacement Notes, as the case may be) executed by the Borrower, payable to each applicable Lender of such Class (other than including any Designated Lender, if applicable, but excluding any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.12.(a);
(iii) an opinion of outside counsel to the Guaranty executed by each of Borrower and the Parent other Loan Parties, addressed to the Administrative Agent and each Material Subsidiary existing the Lenders and covering such matters as of the Effective DateAdministrative Agent may request;
(iv) (A) copies of the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Person (or in the case of any Loan Party and (y) other than the Borrower, any other date acceptable to the Administrative Agent so long as such organizational documents are certified as of the Effective Date by the Secretary or Assistant Secretary (or other individual performing similar functions) of such the applicable Loan Party) or (B) a certification by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party as being a true, correct and complete copy thereof as that such documents have not been amended or otherwise modified since the date of the Agreement DatePrior Credit Agreement;
(v) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse EffectPerson;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Revolving Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(vii) (A) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A1) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B2) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a partyparty or (B) with respect to the items in clause (A)(1) above, a certification by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party that such documents have not been amended or otherwise modified since the date of the Prior Credit Agreement;
(viii) a Closing Certificate substantially in form of Exhibit U, executed on behalf of the Borrower by an opinion authorized officer of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative AgentBorrower;
(ix) a Disbursement Instruction Agreement effective as of the Agreement Date;
(x) a pro forma Compliance Certificate prepared as of December 31, 2021;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders by or on behalf of the Borrower prior to the Agreement Date in connection with the transactions contemplated by this Agreement that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which is reasonably likely to be adversely determined, and, if adversely determined, could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, the Borrower and its Subsidiaries the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which which, or the failure to make, give or receive which, would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(e) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender at least 2 Business Days prior to the Agreement Date in order to comply with requirements of any applicable “know your customer” and Anti-Money Laundering Laws, including, including without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.Patriot Act;
(f) Each the Borrower and each other Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case case, at least five (5) Business Days prior to the Effective Date; and
(g) all outstanding “Revolving Loans” under and as defined in the Existing Credit Agreement shall have been repaid in full (which, for the avoidance of doubt, shall be repaid with one or more Revolving Loans under this Agreement).
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes, Term Notes of each Class and Bid Rate Notes executed by the Borrower, payable to each applicable Lender of such Class (other than including any Designated Lender, if applicable but excluding any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.11.
(a2.12.(a) and a replacement the Swingline Note executed by the Borrower;
(iii) an opinion of counsel to the Guaranty executed by each of Borrower and the Parent other Loan Parties, addressed to the Administrative Agent and each Material Subsidiary existing the Lenders and covering such matters as of the Effective DateAdministrative Agent may reasonably request;
(iv) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(v) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Revolving Borrowing, Notices of Conversion, Notices of ContinuationTerm Loan Borrowing, Notices of Swingline Borrowing, and to request issuance of requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(vii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion a Compliance Certificate calculated as of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not Effective Date on a Material Subsidiary)pro forma basis for the Borrower’s fiscal quarter ended September 30, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2014;
(ix) a Disbursement Instruction Agreement effective as of the Agreement Date;
(x) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxi) a Compliance Certificate calculated as of evidence that all indebtedness, liabilities or obligations owing by the Effective Date (giving pro forma effect to Loan Parties under the financing evidenced by this Existing Revolving Credit Agreement and the use of the proceeds of the Loans to be funded on the Existing Term Loan Agreement Date);
(xi) [reserved];shall have been paid in full and all Liens, if any, securing such indebtedness, liabilities or other obligations have been released; and
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of Loans on the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Effective Date is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.10.(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors, if any, initially required to be a party thereto pursuant to Section 7.13.;
(iv) an opinion of Xxxxxxxx & Worcester LLP, and an opinion of Xxxxxxx LLP, special Maryland counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices the Notice of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated as of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not Effective Date on a Material Subsidiary)pro forma basis for the Borrower’s fiscal quarter ending March 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2014;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) the Notice of Borrowing from the Borrower requesting the Loans;
(xii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, the Borrower Letter executed by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (Ax) have a Material Adverse Effect, or (By) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(e) there shall not have occurred or exist any material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents; and
(ef) The the Borrower and each other Loan Party shall have provided to all information requested in writing by the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any each Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDate in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
Appears in 1 contract
Samples: Term Loan Agreement (Senior Housing Properties Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
: (a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
: (i) counterparts of this Agreement executed by each of the parties hereto;
; (ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any applicable Lender that has requested that it not receive a Note) and Notes, in each case, complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower;
2.12.(a); (iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date;
Guarantors initially to be a party thereto; (iv) an opinion of Xxxxx Lovells US LLP and such other counsel to the Borrowers and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request; (v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date (or other date acceptable to the Administrative Agent) by the Secretary of State of the state of formation of such Loan Party and Party; (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement Date;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
; (vivii) a certificate of incumbency signed by the Secretary secretary or Assistant Secretary assistant secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the each Borrower, authorized to execute and deliver on behalf of the such Borrower Notices of Borrowing, Notices requests for Letters of ConversionCredit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
Continuation; (viiviii) copies certified by the Secretary secretary or Assistant Secretary assistant secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
; (ix) evidence that the Fees then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any a certificate signed by a Responsible Officer of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to Company certifying (A) that the conditions specified in Sections 5.1.(b)-(d) and 5.2. have a Material Adverse Effect, or been satisfied and (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.the
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each applicable Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.8.(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Dateother Guarantors initially to be a party thereto;
(iv) an opinion of legal counsel to the Borrower and the other Loan Parties, reasonably satisfactory to the Administrative Agent, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent shall reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by provided, that to the Secretary or Assistant Secretary (or other individual performing similar functions) of extent such formation document was delivered in connection with the Existing Term Loan Agreement, such Loan Party as being (excluding the Parent and the Borrower) shall be permitted to provide a true, correct and complete copy thereof as certificate of the Agreement Dateno change with respect to such formation document);
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices the Notice of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity (provided, that to the extent such organizational document was delivered in connection with the Existing Term Loan Agreement, such Loan Party (excluding the Parent and the Borrower) shall be permitted to provide a certificate of no change with respect to such organizational document) and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate calculated on a pro forma basis for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Parent’s fiscal quarter ending March 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2013;
(ixx) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of if required by the Agreement DateAdministrative Agent, insurance certificates, or other evidence, providing that the insurance coverage required under Section 7.5. (including, without limitation, both property and liability insurance) is in full force and effect;
(xiii) evidence that the Existing Credit Agreement has been amended to conform to certain sections of repayment this Agreement, in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by form and among substance satisfactory to the Borrower, the ParentAdministrative Agent, and Xxxxx Fargo, as administrative agent under the Existing Credit Agreement;
(xiv) evidence that the Existing Term Loan Agreement has been amended to conform to certain sections of this Agreement, in form and substance satisfactory to the Borrower, the financial institutions from time to time party theretoAdministrative Agent, and KeyBank National Association, as administrative agent, and agent under the other parties thereto, as amended by that certain First Amendment to Existing Term Loan Credit Agreement dated as of April 26, 2017 and Agreement;
(yxv) that certain Term Loan Agreement dated as of April 26, 2017, by and among payoff letters from the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as lender or administrative agent, and as applicable, under each of the other parties thereto; andExisting Mortgage Loans providing appropriate information regarding the payment in full of all Indebtedness under each Existing Mortgage Loan;
(xivxvi) the Notice of Borrowing pursuant to Section 2.1.(b);
(xvii) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, Agent may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect Effect, other than as previously disclosed to Administrative Agent and the Lenders in writing and approved by the Administrative Agent and Lenders in writing, or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The the Parent, the Borrower and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, bound except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its their respective obligations under the Loan Documents to which it is a party; and;
(eiv) The the Parent, the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations., including without limitation, the Patriot Act; and
(fv) Each there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDocuments.
Appears in 1 contract
Initial Conditions Precedent. The closing and effectiveness of this Agreement and the obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the satisfaction or waiver of the following conditions precedent:precedent (as confirmed to the Lenders by Administrative Agent):
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.10.(a);
(iii) the a Guaranty executed by each of the Guarantors initially to be a party thereto, and the Parent and each Material Subsidiary existing as of Guaranty executed by the Effective DateParent ;
(iv) an opinion of counsel of the Parent and the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders in form and substance acceptable to Administrative Agent;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party and the Parent certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) Person or by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DatePerson;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party and the Parent issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party Person is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party and the Parent with respect to each of the officers of such Loan Party Person authorized to execute and deliver the Loan Documents to which such Loan Party Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party and the Parent of (A) the by-laws of such Loan PartyPerson, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Borrowing Base Certificate calculated as of counsel to June 30, 2009
(x) a Compliance Certificate calculated on a pro forma basis for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Borrower's fiscal quarter ending June 30, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2009;
(ixxi) with respect to each Property identified on Schedule 4.1., each of the items referred to in Section 6.3. required to be delivered in connection with any Borrowing Base Property;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) UCC, tax, judgment and lien search reports with respect to the Borrower (or Subsidiary if any Borrowing Base Property is owned by a Subsidiary) and each Borrowing Base Property in all necessary or appropriate jurisdictions indicating that there are no Liens of record on such Property other than Permitted Liens;
(xiv) copies of all Material Contracts with respect to the Borrowing Base Properties and Specified Derivatives Contracts in existence on the Agreement Date;
(xv) copies of the form of Tenant Lease to be used for each Borrowing Base Property from the Effective Date until the Maturity Date and each Tenant Lease entered into as of the Agreement Date with respect to such Borrowing Base Property;
(xvi) the Fee Letter;
(xvii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxviii) insurance certificates, or other evidence, providing that the insurance coverage required under the Security Documents (including, without limitation, both property and liability insurance) is in full force and effect and stating that the coverage shall not be cancelable or materially changed without ten (10) days prior written notice to the Administrative Agent of any cancellation for non-payment or premiums, and not less than thirty (30) days prior written notice to the Administrative Agent of any other cancellation or any modification (including a Compliance Certificate calculated as reduction in coverage), together with appropriate evidence that the Administrative Agent, for its benefit and the benefit of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement Lenders and the use of the proceeds of the Loans to be funded Specified Derivatives Providers is named as a lender's loss payee and additional insured, as appropriate, on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) all insurance policies that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time any Loan Party or any other Subsidiary actually maintains with respect to time party thereto, KeyBank National Association, as administrative agent, any Borrowing Base Property and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoimprovements on such Borrowing Base Property; and
(xivxix) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party or the Parent to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The the Parent, the Borrower and its Subsidiaries the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which which, or the failure to make, give or receive which, would not reasonably be likely to (A1) have a Material Adverse Effect, or (B2) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or Borrower, any other Loan Party or the Parent to fulfill its is obligations under the Loan Documents to which it is a partyparty ; and
(eiv) The Borrower there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Revolving Note) and complying with the terms of Section 2.112.10.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Dateother Guarantors;
(iv) an opinion of counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit J;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated as of counsel March 31, 2011 giving pro forma effect to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)transactions contemplated by this Agreement, addressed to including termination of the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative AgentExisting Credit Agreement;
(ixx) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent:
(i) since December 31, 2010, there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation event or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date condition that has had or could reasonably be expected to result in have a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The the Parent, the Borrower Borrower, the other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions onenjoin, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The the Parent, the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements the USA Patriot Act (Title III of any AntiPub. L. 107-Money Laundering Laws56 (signed into law October 26, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations2001)).
(fc) Each Loan Party The Administrative Agent shall give notice (which may be by electronic mail or Subsidiary thereof other similar means of electronic communication) to the Borrower and the Lenders promptly upon is determination that qualifies as a “legal entity customer” under all of the Beneficial Ownership Regulation conditions precedent set forth in this Section shall have delivered to been fulfilled or waived by all of the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateLenders.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each applicable Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.11.(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors, if applicable, initially to be a party thereto;
(iv) an opinion of Xxxxxxxxx Xxxxxxxx Xxxx Xxxxxxx LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit H;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices the Notice of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate calculated on a pro forma basis for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Borrower’s fiscal quarter ending March 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2020;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) the Revolver First Amendment shall have closed, all signatures thereto shall have been released and such Revolver First Amendment shall be effective;
(xii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, Agent and the Lead Arrangers and any of the LendersArrangers, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been paid;
(xxiii) a Compliance Certificate calculated as Notice of the Effective Date (giving pro forma effect to the financing evidenced Borrowing executed by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with the requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.;
(fv) Each each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Agreement Date; and
(vi) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes, Term Facility 1 Notes of each Class and Term Facility 2 Notes executed by the Borrower, Borrower and payable to each applicable Lender of such Class (other than excluding any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.11.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Dateother Guarantors (if any) initially to be a party thereto;
(iv) an opinion of Vaisey, Xxxxxxxxx & Xxxxxxxx PLLC, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party Person and (y) certified as true, complete and correct copies by the Secretary or Assistant Secretary (or other individual performing similar functions) of such the applicable Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion either (i) evidence that each subsidiary guarantor of counsel to the Loan Parties senior notes issued under the Senior Notes Agreement has been or, substantially simultaneously with the effectiveness hereof will be, released from such guaranty or (other than any Accommodation Subsidiary that is not ii) each such subsidiary shall be a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative AgentGuarantor hereunder;
(ixx) a Compliance Certificate calculated on a pro forma basis for the Parent’s fiscal quarter ending March 31, 2017;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as certified copy of a duly executed amendment to the Agreement DateExisting Term Loan Agreement;
(xiii) evidence of repayment that all indebtedness, liabilities or obligations owing under the Existing Credit Agreements have been paid in full of (x) that certain Term Loan Agreement dated as of May 3full, 2016all Liens securing such indebtedness, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agentliabilities or obligations have been released, and the other parties thereto, as amended by that certain First Amendment to Term Loan all commitments under such Existing Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoAgreements have been terminated or expired; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since March 31, 2017 (the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date Date), that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The the Parent, the Borrower Borrower, the other Loan Parties, and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other shall have received all information requested by the Administrative Agent and each Lender in order to comply with requirements of any applicable “know your customer” and Anti-Money Laundering Laws, including, including without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.Patriot Act; and
(fv) Each there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Party Documents. Without limiting the generality of the provisions of Section 12.5, for purposes of determining compliance with the conditions precedent set forth in this Section 6.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or Subsidiary thereof that qualifies as accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a “legal entity customer” under Lender unless the Beneficial Ownership Regulation Administrative Agent shall have delivered to the Administrative Agent, and any received notice from such Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the proposed Effective DateDate specifying its objection thereto.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Broadstone Net Lease, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.112.10.
(a) , and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing that owns or leases a Collateral Property as of the Effective Date;
(iv) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(v) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of ConversionSwingline Borrowings, Notices of Continuation, Continuation and Notices of Swingline Borrowing, Conversion and to request the issuance of Letters of Credit;
(vii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Parties, addressed to the Administrative Agent and Agent, the Lenders and covering such customary the Swingline Lender, addressing the matters as may be required by the Administrative Agentset forth in Exhibit M;
(ix) evidence that the Fees then due and payable under Section 3.53.6., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved]a Borrowing Base Certificate calculated as of the Effective Date;
(xii) a Disbursement Instruction Agreement effective the Borrower shall have consummated its initial public offering of common shares and shall have received Net Proceeds therefrom as of contemplated in the Agreement DateBorrower’s Form S-11 as filed with the Securities and Exchange Commission;
(xiii) evidence a statement of repayment funds flow setting forth in full reasonable detail the application of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, such Net Proceeds and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as proceeds of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, initial Loans being funded on the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoEffective Date; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Agent and the Lenders:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its other Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The the Parent, the Borrower and its other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of CreditLoan, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any applicable Lender that has requested that it not receive a Note) and Notes, complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.12.(a);
(iii) the Guaranty executed by each of Subsidiary Guarantor, the Parent and each Material Subsidiary existing as of the Effective Dateother Required Guarantor;
(iv) [reserved];
(v) an opinion letter of Xxxxxx LLP and Xxxxxxx LLP (with respect to Maryland law matters), counsel to the Borrower and the other Loan Parties addressed to the Administrative Agent and the Lenders in form and substance acceptable to the Administrative Agent;
(vi) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) an opinion [reserved];
(xi) evidence of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)property, addressed business interruption and liability insurance covering each Eligible Property in form and substance reasonably acceptable to the Administrative Agent Agent, and the Lenders and covering such customary matters as may be required if requested by the Administrative Agent, copies of such insurance policies;
(ixxii) [reserved];
(xiii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 6.1.(b) through (d) and Section 6.2 have been satisfied;
(xiv) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2023;
(xv) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xvi) a copy of an amendment to the WF Term Loan Agreement, duly executed by the parties thereto and effective on or prior to the Effective Date, and evidence that all conditions precedent thereto have been satisfied;
(xvii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxviii) a Compliance Certificate calculated as copies of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded all Specified Derivatives Contracts in existence on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxix) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parentthe Borrower, the Borrower other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The the Borrower and each other Loan Party shall have provided delivered, on behalf of itself and any Loan Party, to each Lender that so requests a Beneficial Ownership Certification at least five (5) days prior to the Administrative Agent Effective Date, and the Lenders the documentation and other all information reasonably requested by the Administrative Agent and each Lender in order to comply with requirements of any applicable “know your customer” and Anti-Money Laundering Laws, including, including without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsPatriot Act.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Revolving Note) and complying with the terms of Section 2.11.
(a2.10.(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary (other than an Excluded Subsidiary or a Foreign Subsidiary) existing as of the Effective Date;
(iv) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement Date;
(v) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(vii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence that the Fees then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved]with respect to each Property identified on Schedule 4.1., each of the items referred to in Section 4.1.(b)(i), (ii), (iv) and (vi) required to be delivered in connection with any Unencumbered Property and a pro forma operating budget for such Property with respect to the current fiscal year;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5. (including, without limitation, both property and liability insurance) is in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by force and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoeffect; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, this Agreement is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, a Note payable to each Lender of such Class not party to the Third Amended Credit Agreement and a replacement Note payable to each Lender whose Commitment is being increased pursuant to this Agreement (other than excluding, in each case, any Lender that has requested that it not receive a Note) and ), in each case complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.13(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(ivA) an opinion of Xxxxxxxxxx PC, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of organization or formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DatePerson;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party Person is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party Person authorized to execute and deliver the Loan Documents to which such Loan Party Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan PartyPerson, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Parent Guarantor’s fiscal quarter ended December 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2014;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxii) a Compliance Certificate calculated evidence reasonably satisfactory to the Administrative Agent that (A) all accrued and unpaid interest, fees and expenses under the Third Amended Credit Agreement shall have been fully paid, the commitments thereunder shall be amended and restated as of the Effective Date date hereof as set forth on Schedule 1 hereto, and any and all Liens thereunder have been terminated and released and (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xiB) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment each Departing Lender shall have received payment in full of (x) that certain Term Loan Agreement dated as all of May 3, 2016, by and among the Borrower, “Obligations” under the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Third Amended Credit Agreement dated (other than obligations to pay fees and expenses with respect to which the Borrower has not received an invoice, contingent indemnity obligations and other contingent obligations owing to it under the “Loan Documents” as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among defined in the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoThird Amended Credit Agreement); and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There no Default or Event of Default shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effectexist;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations., including without limitation, the Patriot Act; and
(fd) Each The representations and warranties made or deemed made by the Borrower and each other Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under in this Agreement and in the Beneficial Ownership Regulation other Loan Documents delivered pursuant to Section 6.1 shall have delivered to the Administrative Agent, be true and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Datecorrect.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Revolving Note) and complying with the terms of Section 2.112.10.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) an opinion of Xxxxxxxx & Worcester LLP, and an opinion of Xxxx Xxxxx LLP, special Maryland counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse EffectEffect and each state in which a Collateral Property owned by such Loan Party is located;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Compliance Certificate calculated as of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not Effective Date on a Material Subsidiary)pro forma basis for the Borrower’s fiscal quarter ending March 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2017;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) [intentionally omitted];
(xii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, the Borrower Letter executed by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements the USA Patriot Act (Title III of any AntiPub. L. 107-Money Laundering Laws56 (signed into law October 26, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.2001)); and
(fv) Each there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDocuments.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Revolving Note) and complying with the terms of Section 2.112.10.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary (other than an Excluded Subsidiary or a Foreign Subsidiary) existing as of the Effective Date;
(iv) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement Date;
(v) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(vii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary the matters as may be required by the Administrative Agentset forth in Exhibit J;
(ix) evidence that the Fees then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved]with respect to each Property identified on Schedule 4.1., each of the items referred to in Section 4.1.(b)(i), (ii), (iv) and (vi) required to be delivered in connection with any Unencumbered Borrowing Base Property and a pro forma operating budget for such Property with respect to the current fiscal year;
(xii) a Disbursement Instruction Agreement Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence of repayment insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5. (including, without limitation, both property and liability insurance) is in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by force and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoeffect; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith and reasonable judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The the Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, this Agreement is subject to the satisfaction or waiver of the following conditions precedent:precedent (the date of the satisfaction or waiver of the conditions set forth in this Section 6.1, the “Effective Date”):
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) to the extent requested by each Lender, Notes of each Class executed by the Borrower, payable to each applicable Lender of such Class (other than but excluding any Lender that has requested that it not to receive a NoteNotes) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.12(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateXxxxxx REIT;
(iv) an opinion of (A) Xxxxxx & Xxxxxxx LLP, special counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters reasonably required by Administrative Agent and (B) Xxxxxxx LLP, Maryland counsel to the Borrower and Xxxxxx REIT, addressed to the Administrative Agent and the Lenders and covering the matters reasonably required by the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party issued within thirty (30) days of the date hereof and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) a Compliance Certificate calculated on a pro forma basis (taking into account the Unencumbered Pool Properties as of the Agreement Date) for the Borrower’s fiscal quarter ending December 31, 2014;
(x) a Disbursement Instruction Agreement effective as of the Effective Date;
(xi) evidence of the substantially concurrent (pursuant to an opinion escrow arrangement reasonably satisfactory to Administrative Agent) closing of counsel (A) “The Redwood Portfolio” acquisition by Borrower and Xxxxxx REIT pursuant to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Asset Purchase Agreement among the sellers named therein, addressed the Xxxxxx REIT, and Borrower delivered to the Administrative Agent and certain other initial lender parties on December 6, 2014, at 4:45 pm Pacific Time (the Lenders “Acquisition”) and covering such customary matters as may the termination of all commitments, in their entirety, to issue the up to $1.75 billion senior unsecured bridge term loan proposed to be required by made to the Borrower pursuant to the $1.75BN Bridge Commitment Letter and (B) the Second Amended and Restated Credit Agreement;
(xii) copies of all Material Contracts in existence on the Agreement Date not previously delivered to Administrative Agent;
(ixxiii) evidence that the Fees then due and payable under Section 3.5., together with Fee Letter;
(xiv) all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the LendersLenders for which an invoice has been provided at least three (3) Business Days prior to the date hereof, including including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxv) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement extent not previously delivered to Administrative Agent, insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 (including, without limitation, both property and the use of the proceeds of the Loans to be funded on the Agreement Date)liability insurance) is in full force and effect;
(xixvi) [reserved];
(xii) a Disbursement Instruction Agreement effective as UCC, tax, judgment and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions indicating that there are no liens of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the record other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretothan Permitted Liens; and
(xivxvii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions a complete listing of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation all Subsidiaries that which are not also Material SubsidiariesGuarantors.
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projectionsDecember 31, budgets2014, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Antiapplicable “know your customer” and anti-Money Laundering Lawsmoney laundering rules and regulations, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.USA Patriot Act; and
(fv) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation there shall not have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days occurred prior to the Effective Datedate hereof (but excluding, for the avoidance of doubt, the date hereof pursuant to the funding of the cost of the Acquisition from other sources) a termination of the commitments under the Commitment Letter, dated December 6, 2014, among the Parent, Borrower, Xxxxx Fargo Bank, National Association, Xxxxx Fargo Securities, LLC, Bank of America, N.A., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxxx Sachs Bank USA, with respect to the proposed $1.75 billion senior unsecured bridge term loan (the “$1.75BN Bridge Commitment Letter”); and
(vi) the aggregate commitment of Xxxxx Fargo Bank, National Association, under the Second Amended and Restated Credit Agreement shall have been reduced to $255,000,000 or less.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Hudson Pacific Properties, L.P.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.112.10.
(a) and a replacement Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date;
(iv) the certificate or The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(viv) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viv) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viivi) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiivii) an An opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative AgentLenders;
(ixviii) evidence that the The Fees then due and payable under Section 3.53.6., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the LendersLenders on or prior to the Effective Date, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xix) a A Compliance Certificate calculated as of the Effective Date December 31, 2023 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Effective Date);
(xix) [reserved];
(xii) a A completed Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) Evidence that all indebtedness, liabilities or obligations (other than obligations in respect of Existing Letters of Credit) owing by the Loan Parties under the Existing Credit Agreement shall have been paid in full and all Liens, if any, securing such indebtedness, liabilities or other obligations have been released;
(xii) At least five (5) Business Days prior to the Agreement Date, all documentation and other information requested by the Administrative Agent or any Lender or required by regulatory authorities in order for the Administrative Agent and the Lenders to comply with requirements of any Anti-Money Laundering Laws, including the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) and any applicable “know your customer” rules and regulations;
(xiii) evidence of repayment A Beneficial Ownership Certification in full of relation to the Borrower (xor a certification that the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations), in each case at least five (5) that certain Term Loan Business Days prior to the Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoDate; and
(xiv) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Administrative Agent:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (NNN Reit, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties heretohereto (which shall include, without limitation, each of the “Lenders” under the Existing Term Loan Agreements);
(ii) Revolving Notes of each Class and Term Notes executed by the Borrower, payable to each applicable Lender of such Class (other than excluding any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.112.12.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date[reserved];
(iv) an opinion of outside counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) copies of the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of incorporation or formation of such Person (or in the case of any Loan Party and (y) other than the Borrower, any other date acceptable to the Administrative Agent so long as such organizational documents are certified as of the Effective Date by the Secretary or Assistant Secretary (or other individual performing similar functions) of such the applicable Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty);
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation or incorporation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse EffectPerson;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion Unencumbered Asset Certificate calculated as of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)December 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2017;
(ixx) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2017;
(xi) a Closing Certificate substantially in form of Exhibit T, executed on behalf of the Borrower by an authorized officer of the Borrower;
(xii) [reserved];
(xiii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the reasonable fees and expenses of counsel to the Administrative AgentAgent invoiced to the Borrower at least 2 Business Days prior to the Agreement Date, have been paid (or substantially concurrently with the first Credit Event will be paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) copies of the notice sent to all of the holders of the notes outstanding under each of the Existing Note Purchase Agreements pursuant to Section 9.7(b) of each Existing Note Purchase Agreement directing the release of SCA as a guarantor under each of the Existing Note Purchase Agreements;
(xv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders by or on behalf of the Borrower prior to the Agreement Date in connection with the transactions contemplated by this Agreement that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which is reasonably likely to be adversely determined, and, if adversely determined, could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, the Borrower and its Subsidiaries the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which which, or the failure to make, give or receive which, would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(e) the Lenders shall have completed their accounting, business, financial, legal, tax, environmental and regulatory due diligence investigation of the Borrower, the Guarantors and the Unencumbered Assets in scope, and with results, satisfactory to the Lenders in their sole discretion; and
(ef) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender at least 2 Business Days prior to the Agreement Date in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a2.11.(a) and a replacement Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date;
(iv) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement Date;
(v) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(vii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence that the Fees then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a any Note) and complying with the terms of Section 2.11.
(a2.11.(a) and a replacement the Swingline Note executed by the Borrower;
(iii) an opinion of Xxxxxxxx & Worcester LLP, and an opinion of Xxxx Xxxxx LLP, special Maryland counsel, in each case, counsel to the Guaranty executed by each of Borrower and the Parent other Loan Parties, addressed to the Administrative Agent and each Material Subsidiary existing the Lenders and covering such matters as of the Effective DateAdministrative Agent may reasonably request;
(iv) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(v) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Revolving Borrowing, Notices of Conversion, Notices of ContinuationTerm Loan Borrowing, Notices of Swingline Borrowing, and to request issuance of requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(vii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion a Compliance Certificate calculated as of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not Effective Date on a Material Subsidiary)pro forma basis for the Borrower’s fiscal quarter ended September 30, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2014;
(ix) a Disbursement Instruction Agreement effective as of the Agreement Date;
(x) a Notice of Term Loan Borrowing executed by the Borrower for each of the 2020 Term Loans and the 2022 Term Loans;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of if required by the Agreement DateAdministrative Agent, insurance certificates, or other evidence, providing that the insurance coverage required under Section 7.5. (including, without limitation, both property and liability insurance) is in full force and effect;
(xiii) evidence of repayment that all indebtedness, liabilities or obligations owing by the Loan Parties under the Existing Credit Agreement shall have been paid in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among concurrently with the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan first Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoEvent hereunder; and
(xiv) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(e) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.Patriot Act; and
(f) Each there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDocuments.
Appears in 1 contract
Samples: Credit Agreement (Government Properties Income Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is and the effectiveness of the amendment and restatement of the Existing Credit Agreement, are subject to the satisfaction or waiver of the following conditions precedent:
: (a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
: (i) counterparts of this Agreement executed by each of the parties hereto;
; (ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower;
2.11.(a); (iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date;
Parent; (iv) an opinion of counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in the form set forth in Exhibit J; (v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and Party; (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement Date;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of - 71 - LEGAL02/44384586v6 taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
; (vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Revolving Borrowing, the Notice of Term Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
; (viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
; (viiiix) an opinion a Compliance Certificate calculated as of counsel March 31, 2021 giving pro forma effect to the Loan Parties transactions contemplated by this Agreement; (other than any Accommodation Subsidiary that is not x) a Material Subsidiary), addressed to completed Disbursement Instruction Agreement effective as of the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
Agreement Date; (ixxi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
; (xii) a Disbursement Instruction evidence that all accrued and unpaid interest and fees owing by the Loan Parties under the Existing Credit Agreement effective as have been paid in full and that the principle amount of the Agreement Date;
Existing Term Loans and all interest, fees and other amounts owed with respect to the Existing Term Loans have been paid in full and that the agreement evidencing the Existing Term Loans has been terminated; and (xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
; (b) There since December 31, 2020, there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation event or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date condition that has had or could reasonably be expected to result in have a Material Adverse Effect;
; (c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(ed) The Borrower and each the Parent, the Borrower, the other Loan Party Parties and the other Subsidiaries shall have provided to the Administrative Agent received all approvals, consents and the Lenders the documentation waivers, and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, made or given all necessary filings and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.- 72 - LEGAL02/44384586v6
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class and Term Notes executed by the Borrower, payable to each requesting Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) intentionally omitted;
(v) an opinion of Xxxxx Lovells US LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters reasonably requested by the Administrative Agent;
(vi) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence that the Fees then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving on a pro forma effect to basis for the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date)Parent’s fiscal quarter ended June 30, 2016;
(xi) [reserved]intentionally omitted;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term all indebtedness, liabilities or obligations owing by the Loan Parties under the Master Loan and Security Agreement dated as of May 3March 7, 20162013, by among X.X. Xxxxxx Chase - 68 - Bank, N.A. and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National AssociationXxxxx Fargo, as administrative agentlenders, and the other parties theretosubsidiaries of the Parent identified therein, as amended by borrowers, as amended, supplemented or otherwise modified, shall have been paid in full and all Liens securing such indebtedness, liabilities or other obligations have been released;
(xiv) intentionally omitted;
(xv) the Fee Letter;
(xvi) evidence that certain First Amendment the Fees, if any, then due and payable under Section 3.5., together with, to Term Loan Credit Agreement dated as the extent a reasonably detailed invoice thereof has been presented to the Borrower prior to the Effective Date, all other reasonable and documented out-of-pocket fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of April 26the Lenders, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrowerincluding without limitation, the Parentreasonable and documented out-of-pocket fees and expenses of counsel to the Administrative Agent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretohave been paid; and
(xivxvii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in have a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or Borrower, any other Loan Party or the Parent to fulfill its obligations under the Loan Documents to which it is a party;
(d) The the Parent, the Borrower Borrower, the other Loan Parties and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement, the Account Control Agreement and the Securities Account Control Agreement executed in each case by each of the parties hereto;
(ii) Term Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.12(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantor initially to be a party thereto;
(iv) an opinion of counsel to the Borrower and such other Loan Parties as Administrative Agent may request, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a Borrowing Base Certificate calculated as of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative AgentAgreement Date;
(ixx) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending June 30, 2012;
(xi) reserved;
(xii) UCC, tax, judgment and lien search reports with respect to the Borrower;
(xiii) copies of all Material Contracts in existence on the Agreement Date;
(xiv) reserved;
(xv) the Fee Letter;
(xvi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxvii) a Compliance Certificate calculated Delivery of all documents constituting the Collateral as may be required by Administrative Agent, including, endorsements to Administrative Agent of the Effective Date (giving pro forma effect Ahold Bensalem Participation and all B Notes and Assignments of the Mortgage Loan Documents with respect to the financing evidenced by this Agreement Ahold Bensalem Participation and the use of the proceeds of the Loans to be funded on the Agreement Date)all B Notes;
(xixviii) [reserved]Any and all consents, approvals and waivers applicable to the Collateral shall have been obtained;
(xiixix) a Disbursement Instruction Agreement effective as Administrative Agent shall have received evidence satisfactory to the Administrative Agent that, the payor with respect to any and all Income on the Junior Interests has been instructed pursuant to Irrevocable Instructions to deliver such amounts to the Collection Account, which instructions may not be modified without the prior written consent of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agentAdministrative Agent, and the other parties theretoBorrower shall have delivered all notices and instructions and obtained all certifications, as amended acknowledgements, agreements and registrations required by that certain First Amendment Administrative Agent to Term Loan Credit Agreement dated as of April 26, 2017 and perfect the Lenders’ security interest in all Junior Interests.
(yxx) that certain Term Loan Agreement dated as of April 26, 2017, by and among Administrative Agent shall have received evidence satisfactory to the BorrowerAdministrative Agent that, the ParentNationsLink I/O Bond shall have been deposited into the Securities Account and, which deposit may not be modified without the financial institutions from time to time party thereto, Regions Bank, as administrative agentprior written consent of the Administrative Agent, and the other parties theretoBorrower shall have delivered all notices and instructions and obtained all certifications, acknowledgements, agreements and registrations required by Administrative Agent to perfect the Lenders’ security interest in the NationsLink I/O Bond; and
(xivxxi) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the ParentBorrower, the Borrower Guarantor and its their Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or or, to Borrower’s knowledge, threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower and its Subsidiaries the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001));
(v) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents; and
(vi) no event shall have occurred that would constitute a Default or Event of Default under this Agreement. Borrower shall not have notified Administrative Agent of the occurrence of any Anti-Money Laundering Laws, including, without limitation, event described in Sections 6.1(b) as of the PATRIOT Act and any applicable “know your customer” rules and regulationsdate of the occurrence of the first Credit Event hereunder.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (CapLease, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any applicable Lender that has requested that it not receive a Note) and Notes, in each case, complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.12.(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(iv) an opinion of Hxxxx Xxxxxxx US LLP and such other counsel to the Borrowers and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date (or other date acceptable to the Administrative Agent) by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary secretary or Assistant Secretary assistant secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the each Borrower, authorized to execute and deliver on behalf of the such Borrower Notices of Borrowing, Notices requests for Letters of ConversionCredit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary secretary or Assistant Secretary assistant secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion a certificate signed by a Responsible Officer of counsel the Company certifying (A) that the conditions specified in Sections 5.1.(b)-(d) and 5.2. have been satisfied and (B) that the Properties identified in Schedule 6.1.(f)(ii) satisfy the requirements for inclusion in the calculation of Unencumbered Asset Value under this Agreement;
(x) a Compliance Certificate pursuant to Section 9.3 of the Loan Parties Existing Credit Agreement reflecting compliance with the financial covenants under the Existing Credit Agreement for the Company’s fiscal quarter ending September 30, 2022;
(other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed xi) pro forma financial projections showing compliance with cash flow projections reasonably acceptable to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ixxii) a Disbursement Instruction Agreement effective as of the Effective Date;
(xiii) evidence reasonably satisfactory to the Administrative Agent of the release of all liens on the Collateral and Covenant Relief Period Collateral (as defined in the Existing Credit Agreement) and termination of any applicable Intercreditor Agreement (as defined in the Existing Credit Agreement) in respect thereof;
(xiv) evidence (A) of the payoff of the Term Loan Agreement and (B) that all liens against the Loan Parties or any Subsidiaries arising out of the Term Loan Agreement have been terminated;
(xv) to the extent reasonably requested by the Administrative Agent, copies of all Specified Derivatives Contracts and Specified Cash Management Agreements, in existence on the Effective Date;
(xvi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with with, to the extent a reasonably detailed invoice has been delivered to the Company prior to the Effective Date, all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including including, without limitation, the reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xivxvii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status, or any change in status of any previously written disclosed event, condition or situation, since the date of the information contained in the financial and business projectionsDecember 31, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date 2021 that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, effectiveness of this Agreement and the ability of the Borrower or any other Loan Party to fulfill its obligations under Documents and the Loan Documents to which it is a partytransactions contemplated hereby and thereby;
(d) The Parent, the Borrower Borrowers and its Subsidiaries the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(e) The each Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any applicable “know your customer” and Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act Patriot Act; provided that the Administrative Agent and the Lenders shall have requested any applicable “know your customer” rules and regulations.such information at least five (5) Business Days prior to the Effective Date; and
(f) Each each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each applicable Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.11.(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors, if applicable, initially to be a party thereto;
(iv) an opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit H;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices the Notice of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate calculated on a pro forma basis for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Borrower’s fiscal quarter ending March 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2020;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) the Revolver First Amendment shall have closed, all signatures thereto shall have been released and such Revolver First Amendment shall be effective;
(xii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, Agent and the Lead Arrangers and any of the LendersArrangers, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been paid;
(xxiii) a Compliance Certificate calculated as Notice of the Effective Date (giving pro forma effect to the financing evidenced Borrowing executed by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with the requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.;
(fv) Each each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Agreement Date; and
(vi) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Samples: Term Loan Agreement (Federal Realty Investment Trust)
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as this Agreement and the making of a Loan or the issuance of a Letter of Credit, Loans on the Effective Date hereunder is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, a Note payable to each Lender of such Class (other than any Lender that has requested that it not receive requesting a Note) Note prior to the Effective Date pursuant to and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.13(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective DateGuarantors initially to be a party thereto;
(ivA) an opinion of Xxxxxxxxxx PC, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of organization or formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DatePerson;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party Person is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party Person authorized to execute and deliver the Loan Documents to which such Loan Party Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices the Notice of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan PartyPerson, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Parent Guarantor’s fiscal quarter ended March 31, addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent2017;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxii) a Compliance Certificate calculated as of an amendment to Revolving Credit Agreement, executed by the Effective Date (giving pro forma requisite parties, which amendment shall, inter alia, permit the term loan facility evidenced hereby and effect changes to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Revolving Credit Agreement dated as which conform with the applicable terms of April 26this Agreement, 2017 all in form and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among substance reasonably satisfactory to the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoAdministrative Agent; and
(xivxiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.;
(b) There no Default or Event of Default shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effectexist;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act;
(d) the representations and warranties made or deemed made by the Borrower and each other Loan Party in this Agreement and in the other Loan Documents delivered pursuant to Section 6.1 shall be true and correct; and
(e) the Administrative Agent shall have received a timely Notice of Borrowing. Each Credit Event shall constitute a certification by the Borrower to the effect set forth in clauses (b), (d) and (e) (both as of the date of the giving of notice relating to such Credit Event and, unless the Borrower otherwise notifies the Administrative Agent prior to the date of such Credit Event, as of the date of the occurrence of such Credit Event). In addition, the Borrower shall be deemed to have represented to the Administrative Agent and the Lenders at the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each time such Loan Party or Subsidiary thereof is made that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered all conditions to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to making of such Loan Party or such Subsidiary, contained in each case at least five (5) Business Days prior to the Effective Datethis Article VI have been satisfied.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower;
(iii) the he Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Date;
(iv) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement Date;
(v) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(vii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence that the Fees then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(e) The Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the BorrowerBorrowers, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.8;
(iii) the The Guaranty executed by each of the Parent and each Material Subsidiary Guarantor existing as of the Effective Date;
(iv) The Pledge Agreement executed by the certificate or Parties thereto;
(v) An opinion of counsel to the Loan Parties, addressed to the Agent and the Lenders, addressing the matters set forth in Exhibit F;
(vi) The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrowers and each other Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the BorrowerBorrowers, authorized to execute and deliver on behalf the officers of the Borrower Representative then authorized to deliver Notices of Borrowing, Notices of Conversion, Continuation and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of CreditConversion;
(viiix) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence that the The Fees then due and payable under Section 3.53.6., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(xxi) a A Compliance Certificate calculated as of the Effective Date June 1, 2007 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Effective Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective A Borrowing Base Certificate dated as of the Agreement Effective Date;
(xiii) evidence Such due diligence (including lien searches and/or title reports) with respect to the Borrowing Base Assets Pool as the Agent on behalf of repayment the Lenders may reasonably request;
(xiv) all documentation, recordings, filings and other actions in full the judgment of (x) that certain Term Loan Agreement dated as the Agent required to collaterally assign the Collateral to the Agent for the benefit of May 3, 2016, by the Lenders and among to perfect the Borrower, Agent's first priority Lien therein for the Parent, benefit the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties theretoLenders shall have been completed; and
(xivxv) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower Trust and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower Borrowers or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower Trust and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i1) any Applicable Law or (ii2) any agreement, document or instrument to which any Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the any Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided to adversely affect the Administrative Agent and the Lenders the documentation and other information requested transactions contemplated by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulationsLoan Documents.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Lexington Master Limited Partnership)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the Borrower, payable to each requesting Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.8.(a);
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Dateother Guarantors (if any) initially to be a party thereto;
(iv) an opinion of legal counsel to the Borrower and the other Loan Parties, reasonably satisfactory to the Administrative Agent, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Conversion and Notices of Continuation, Notices of Swingline Borrowing, and to request issuance of Letters of Credit;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel a Compliance Certificate calculated on a pro forma basis for the Parent’s fiscal quarter ending March 31, 2015, giving pro forma effect to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to making of the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative AgentLoans;
(ixx) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) a Notice of Borrowing;
(xii) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(x) a Compliance Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment if required by the Administrative Agent, insurance certificates, or other evidence, providing that the insurance coverage required under Section 7.5. (including, without limitation, both property and liability insurance) is in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by force and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; andeffect;
(xiv) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, Agent may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in have a Material Adverse Effect;
(c) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect Effect, other than as previously disclosed to Administrative Agent and the Lenders in writing and approved by the Administrative Agent and Lenders in writing, or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) The the Parent, the Borrower and its their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, bound except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(e) The the Parent, the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class and Term Notes executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.112.12.
(a) , and a replacement the Swingline Note executed by the Borrower;
(iii) the The Guaranty executed by each of the Parent and each Material Subsidiary other Guarantor existing as of the Effective Date;
(iv) A Transfer Authorizer Designation Form effective as of the certificate or Agreement Date;
(v) An opinion of counsel to the Loan Parties, addressed to the Agent and, the Lenders, addressing the matters set forth in Exhibit N;
(vi) The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified (x) as of a recent date by the Secretary of State (or comparable official) of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvii) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State (or comparable official) of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (or comparable official and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viviii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of ConversionSwingline Borrowings, Notices of Continuation, Continuation and Notices of Swingline Borrowing, Conversion and to request the issuance of Letters of Credit;
(viiix) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ax) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (By) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiix) an opinion Certificates of counsel insurance evidencing the existence of all insurance required to be maintained by Loan Parties pursuant to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary)Agreement, addressed to the Administrative Agent and the Lenders Agent shall be reasonably satisfied with the type and covering extent of such customary matters as may be required by the Administrative Agentcoverage;
(ixxi) evidence that the The Fees then due and payable under Section 3.53.6., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative Agent, have been paidEffective Date;
(xxii) a Compliance A Borrowing Base Certificate calculated as of the Effective Date Date;
(xiii) A Compliance Certificate calculated as of September 30, 2009 (giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Effective Date);
(xixiv) [reserved];
(xii) a Disbursement Instruction Agreement effective A certificate of the chief financial officer of the Borrower, including reasonably detailed supporting calculations, certifying that the aggregate principal amount of all Loans made on the Effective Date, together with the aggregate amount of all Letter of Credit Liabilities as of the Agreement Effective Date, does not exceed the lesser of:
(A) an amount equal to 60.0% of the Appraised Value of all Properties constituting Borrowing Base Properties as of the Effective Date;
(xiiiB) evidence of repayment in full of an amount equal to (x) that certain Term Loan Agreement dated the Borrowing Base NOI of all Properties constituting Borrowing Base Properties as of May 3, 2016, the Effective Date divided by and among (y)(A) the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and Applicable Mortgage Constant times (yB) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto1.5; and
(xivC) such an amount which, if deemed to be the denominator of Debt Yield, would produce a Debt Yield equal to 14.0%.
(xv) All of the items required to be delivered under Sections 4.1. and 4.2. with respect to each Property identified on Schedule 4.1.; and
(xvi) Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its the other Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower and its the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i1) any Applicable Law or (ii2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(eiv) The Borrower and each There shall not have occurred or exist any other Loan Party shall have provided material adverse change or material disruption in the loan syndication, financial, banking or capital markets that, in the reasonable judgment of the Joint Lead Arrangers, has impaired or could reasonably be expected to impair, the syndication of the Loans, either (i) occurring on or after August 6, 2009, or (ii) occurring prior to August 6, 2009 but becoming known to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering LawsJoint Lead Arrangers after August 6, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations2009.
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (U-Store-It Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes of each Class executed by the Borrower, payable to each Lender of such Class (other than any Lender that has requested that it not receive a Revolving Note) and complying with the terms of Section 2.112.10.
(a) and a replacement the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing as of the Effective Dateother Guarantors initially to be a party thereto;
(iv) an opinion of counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit K;
(v) the certificate or articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the Agreement DateParty;
(vvi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of ConversionSwingline Borrowing, requests for Letters of Credit, Notices of Continuation, Conversion and Notices of Swingline Borrowing, and to request issuance of Letters of CreditContinuation;
(viiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viiiix) an opinion of counsel to a Compliance Certificate calculated on a pro forma basis for the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative AgentParent’s most recently ended fiscal quarter;
(ixx) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xi) evidence that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xxii) a Compliance an Unencumbered Asset Certificate calculated as of the Effective Date (giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) [reserved];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;July 11, 2012; and
(xiii) evidence of repayment in full of (x) that certain Term Loan Agreement dated as of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; and
(xiv) such other documents, agreements documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.; and
(b) There In the good faith judgment of the Administrative Agent and the Lenders:
(i) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its the other Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (iA) result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The the Parent, the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (iA) any Applicable Law or (iiB) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(eiv) The the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” and anti-money laundering rules and regulations., including without limitation, the Patriot Act; and
(fv) Each there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective DateDocuments.
Appears in 1 contract
Samples: Credit Agreement (Excel Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance or continuation of a Letter of Credit, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes of each Class executed by the BorrowerBorrowers, payable to each Lender of (if requested by such Class (other than any Lender that has requested that it not receive a NoteLender) and complying with the terms applicable provisions of Section 2.11.
(a) and a replacement Swingline Note executed by the Borrower2.10;
(iii) the The Guaranty executed by each of the Parent and each Material Subsidiary Guarantor existing as of the Effective Date;
(iv) Opinions of counsel to the certificate or Loan Parties, addressed to the Agent and the Lenders, addressing the matters set forth in Exhibit F;
(v) The articles of incorporation or formationincorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of each Loan Party certified (x) as of a recent date by the Secretary of State of the state of formation of such Loan Party, unless the articles of incorporation, articles of organization, certificates of limited partnership or other comparable organizational instruments (if any) of such Loan Party were previously delivered under the Existing Credit Agreement and (y) by have not been amended, restated, supplemented or otherwise modified since the date previously delivered thereunder and remain in full force and effect on the Agreement Date, in which case the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being may provide a true, correct and complete copy thereof as of the Agreement Datecertificate signed by such Person providing a certification to that effect;
(vvi) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vivii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the BorrowerBorrowers, authorized to execute and deliver on behalf the officers of the Borrower Representative then authorized to deliver Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing, Conversion and to request the issuance of Letters of Credit;
(viiviii) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such Loan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity entity, the copies of which, if previously delivered under the Existing Credit Agreement, may be certified by certifying that the copies of any of foregoing previously delivered to the Agent and the Lenders under the Existing Credit Agreement have not been amended, restated, supplemented or otherwise modified since the date previously delivered thereunder and that each remains in full force and effect as of the Agreement Date, so long as that is the case, and (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(ix) evidence Evidence that the Fees then due and payable under Section 3.5.3.6, together with all and any other feesFees, expenses and reimbursement reimbursable amounts due and payable to the Administrative Agent, the Lead Arrangers Titled Agents and any of the Lenders, including without limitation, the fees and expenses of counsel Lenders on or prior to the Administrative AgentEffective Date, for which invoices have been presented to the Borrowers at least 2 Business Days prior to the Effective Date, have been paid;
(x) a A Compliance Certificate to be calculated based on the financial statements for the period ending as of the Effective Date (September 30, 2012, after giving pro forma effect to the financing evidenced contemplated by this Agreement and the use of the proceeds of the any Loans to be funded on the Agreement Effective Date), and giving effect to the Borrowing Base Assets Pool as of the Effective Date;
(xi) [reserved]A Borrowing Base Certificate dated as of the Effective Date;
(xii) a Disbursement Instruction Agreement effective Such due diligence (including lien searches and/or title reports) with respect to the Borrowing Base Assets Pool as the Agent on behalf of the Agreement DateLenders may reasonably request;
(xiii) evidence of repayment in full of (x) that certain The Existing Term Loan Agreement dated as shall have been executed and in full force and effect simultaneously with the effectiveness of May 3, 2016, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, KeyBank National Association, as administrative agent, and the other parties thereto, as amended by that certain First Amendment to Term Loan Credit Agreement dated as of April 26, 2017 and (y) that certain Term Loan Agreement dated as of April 26, 2017, by and among the Borrower, the Parent, the financial institutions from time to time party thereto, Regions Bank, as administrative agent, and the other parties thereto; andthis Agreement;
(xiv) such Such other documents, agreements and instruments as the Administrative Agent, or any Lender through Agent on behalf of the Administrative Agent, Lenders may reasonably request. The provisions of clauses (iv) through (viii) of request consistent with the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.items required under the Existing Credit Agreement; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower Trust and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(cii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (i1) result in a Material Adverse Effect or (ii2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower Borrowers or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(diii) The Parent, the Borrower Trust and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i1) any Applicable Law or (ii2) any agreement, document or instrument to which any Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the any Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents; and
(ev) The Borrower Borrowers and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other all information requested by the Administrative Agent and each Lender in order to comply with requirements the USA Patriot Act (Title III of any AntiPub. L. 107-Money Laundering Laws56 (signed into law October 26, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations2001)).
(f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
