Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks and 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 deemed issuance) of a Letter of Credit, 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 and Term Notes executed by the Borrower, payable to each applicable Lender (excluding any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.13; (iii) counterparts of the Security Documents executed (and acknowledged, if applicable) by each of the parties thereto; (iv) counterparts of the Guaranty executed by each of the Guarantors initially party thereto; (v) counterparts of the Intercreditor Agreement executed by each of the parties thereto; (vi) complete and correct copies of the executed Second Lien Documents; (vii) an opinion of counsel to the Borrower and the other Loan Parties addressed to the Administrative Agent, the Issuing Banks and the Lenders and covering such matters as the Administrative Agent may reasonably request; (viii) 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, the officers of the Borrower then authorized to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation and to request the issuance of Letters of Credit; (ix) the certificate or articles of incorporation, 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 as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy; (x) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Borrowing Base Property is located, if different from the state of formation of such Person; (xi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of the by-laws of such Person, 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 any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy; (xii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party; (xiii) the Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date; (xiv) [intentionally omitted]; (xv) evidence satisfactory to the Administrative Agent of the payment in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement; (xvi) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.5, together with all other fees, expenses and reimbursement (including, without limitation, all fees, charges and disbursements of counsel to the Administrative Agent, and the fees and expenses of any local counsel, appraisers, consultants and other advisors) amounts then due and payable to the Administrative Agent and any of the Lenders for which payment has been demanded, have been paid or will be paid at closing; (xvii) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable to the Requisite Lenders; and (xviii) a duly executed and delivered modification to or an agreement to modify the PM Gallery Loan Agreement, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii). (b) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (i) have a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party; (c) The Borrower and 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 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, 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, 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 (d) The Borrower and each other Loan Party shall have provided (i) all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act and (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each Lender. (e) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent: (i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests pledged pursuant to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof; (ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens); (iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition; (iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and (v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document. (f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent: (i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 3 contracts
Samples: First Lien Credit Agreement (Pennsylvania Real Estate Investment Trust), First Lien Credit Agreement (Pennsylvania Real Estate Investment Trust), First Lien Credit Agreement (Pennsylvania Real Estate Investment Trust)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks Agent and 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 deemed issuance) of a Letter of Credit, hereunder 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 and Term Notes executed by the Borrower, payable to each applicable Lender (excluding any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.13;
(iii) the Guaranty executed by each of the Guarantors initially to be a party thereto;
(iv) counterparts of the Security Documents executed (and acknowledged, if applicable) by each of the parties thereto;
(iv) counterparts of the Guaranty executed by each of the Guarantors initially party thereto;
(v) counterparts of the Intercreditor Agreement executed by each of the parties thereto[Reserved];
(vi) complete and correct copies of the executed Second Lien Documents;
(vii) an opinion of counsel to the Borrower and the other Loan Parties addressed to the Administrative Agent, the Issuing Banks Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(viiivii) 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, the officers of the Borrower then authorized to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation and to request the issuance of Letters of CreditContinuation;
(ixviii) the certificate or articles of incorporation, 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 as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(xix) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and Borrower, each other Loan Party and each Subsidiary party to a Mortgage or the Pledge Agreement (and in the case of a Loan Party or Subsidiary that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which any such Borrowing Base Mortgaged Property is located, if different from the state of formation of such Person;
(xix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of the by-laws of such Person, 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 any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(xiixi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and Borrower, each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiiixii) the Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xivxiii) [intentionally omitted]the Initial Loan Budget;
(xv) evidence satisfactory to the Administrative Agent of the payment in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvixiv) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.5, together with all other fees, expenses and reimbursement (including, without limitation, all fees, charges and disbursements of counsel to the Administrative Agent, and the fees and expenses of any local counsel, appraisers, consultants and other advisors) amounts then due and payable to the Administrative Agent and any of the Lenders for which payment has been demanded, have been paid or will be paid at closingpaid;
(xviixv) such other documents and instruments as the Effective Date Annual Business PlanAdministrative Agent, which shall be in form and substance or any Lender through the Administrative Agent, may reasonably acceptable to the Requisite Lenders; and
(xviii) a duly executed and delivered modification to or an agreement to modify the PM Gallery Loan Agreement, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).request;
(b) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (i) have a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(c) The Borrower and 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 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, 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, 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
(d) The Borrower and each other Loan Party shall have provided (i) all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act and (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each Lender.
(e) [Reserved].
(f) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateralowned, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests pledged pursuant to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(fg) With respect to each Borrowing Base Mortgaged Property, the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Mortgaged Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Mortgaged Property lies;
(ii) a policy or policies of title insurance (or a commitment on behalf of the title insurance company to issue its title policy as of the Effective Date in the form of a pro forma policy approved by the Administrative Agent) in the amount equal to the allocated loan amount of such real property and fixtures issued by Xxxxxxx Title Guaranty Company (the “Title Company”) insuring the Lien of each such Mortgage as a first priority Lien on the real property described therein, free of any other Liens except for Permitted Liens, together with such customary endorsements as the Administrative Agent may reasonably request to the extent available in the applicable jurisdiction at commercially reasonable rates and available based upon the existing survey and zoning reports for such Mortgaged Property, together with evidence reasonably satisfactory to the Administrative Agent of payment of all expenses and premiums of the Title Company and all other sums required in connection with the issuance of each title policy and all recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Mortgages in the appropriate real estate records;
(iii) (A) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each such real property location in the United States (together with a notice about special flood hazard area status and flood disaster assistance, which, if applicable, shall be duly executed by the applicable Loan Party relating to such real property) and (B) if any such real property is located in an area determined by the Federal Emergency Management Agency to have special flood hazards, evidence of such flood insurance as may be required under Applicable Law, including Regulation H of the FRB and the other Flood Insurance Laws and as required under Section 7.6 of the Existing Revolving Credit Agreement;
(iv) customary legal opinions in form and substance reasonably satisfactory to the Administrative Agent with respect to the mortgagor of such Mortgage and the enforceability and perfection of the applicable Mortgage and such other matters as the Administrative Agent shall reasonably require;
(v) owner’s title affidavits in reasonable form if necessary to induce the Title Company to issue the title policies and endorsements contemplated above; and
(vi) an opinion of counsel with respect to the enforceability of each Mortgage addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request.
Appears in 2 contracts
Samples: Credit Agreement (Pennsylvania Real Estate Investment Trust), Credit Agreement (Pennsylvania Real Estate Investment Trust)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks and 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 deemed issuance) of a Letter of Credit, are 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 and Term Bid Rate Notes (or, in each case, replacement Notes, as the case may be) executed by the Borrower, payable to each applicable Lender (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 2.132.12.(a);
(iii) counterparts of the Security Documents executed (and acknowledged, if applicable) by each of the parties thereto;
(iv) counterparts of the Guaranty executed by each of the Guarantors initially to be a party thereto, if any;
(v) counterparts of the Intercreditor Agreement executed by each of the parties thereto;
(vi) complete and correct copies of the executed Second Lien Documents;
(viiiv) an opinion of in-house and outside counsel to the Borrower and the other Loan Parties Parties, addressed to the Administrative Agent, the Issuing Banks Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(viiiv) 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 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 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 the applicable Loan Party);
(vi) 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 Person;
(vii) 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, the officers of the Borrower then authorized to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation and to request the issuance of Letters of CreditContinuation;
(ix) the certificate or articles of incorporation, 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 as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(x) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Borrowing Base Property is located, if different from the state of formation of such Person;
(xiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of (A) the by-laws of such PersonLoan 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 any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
entity and (xiiB) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiiiix) an Unencumbered Asset Certificate calculated as of September 30, 2018,
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending June 30, 2018,
(xi) a Closing Certificate substantially in form of Exhibit U, executed on behalf of the Borrower by an authorized officer of the Borrower;
(xii) a Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xivxiii) [intentionally omittedReserved];
(xvxiv) evidence satisfactory to the Administrative Agent of the payment in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement (includingamounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, all fees, charges the reasonable fees and disbursements expenses of counsel to the Administrative Agent, have been paid; and
(xv) such other documents, agreements and instruments as the fees Administrative Agent, or any Lender through the Administrative Agent, may reasonably request;
(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 expenses of any local counselbusiness projections, appraisersbudgets, consultants pro forma data and other advisors) amounts then due forecasts concerning the Borrower and payable its Subsidiaries delivered to the Administrative Agent and any the Lenders by or on behalf of the Lenders for which payment Borrower prior to the Agreement Date in connection with the transactions contemplated by this Agreement that has been demanded, have been paid had or will could reasonably be paid at closingexpected to result in a Material Adverse Effect;
(xviic) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable to the Requisite Lenders; and
(xviii) a duly executed and delivered modification to or an agreement to modify the PM Gallery Loan Agreement, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).
(b) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which is reasonably likely to be adversely determined, and, if adversely determined, could reasonably be expected to (iA) have result in a Material Adverse Effect or (iiB) 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;
(cd) The the Borrower and 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 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, 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, 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;
(de) The the Borrower and each other Loan Party shall have provided (i) 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 applicable “know your customer” and antiAnti-money laundering rules and regulationsMoney Laundering Laws, including without limitation, the Patriot Act Act; and
(f) the Borrower and (ii) any Borrower each other Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each Lender.
(e) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests pledged pursuant to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
in each case, at least five (f5) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory Business Days prior to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks Agent and 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 deemed issuance) of a Letter of Credit, are 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 and Term Notes Swingline Note executed by the Borrower, payable to each applicable Lender (excluding any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.132.11.;
(iii) counterparts of the Security Documents executed (and acknowledged, if applicable) by each of the parties thereto;
(iv) counterparts of the Guaranty executed by each of the Guarantors initially to be a party thereto;
(v) counterparts of the Intercreditor Agreement executed by each of the parties thereto;
(vi) complete and correct copies of the executed Second Lien Documents;
(viiiv) an opinion of counsel to the Borrower Parent, the Borrower, and the other Loan Parties Guarantors, addressed to the Administrative Agent, the Issuing Banks Agent and the Lenders and covering such the matters as the Administrative Agent may reasonably requestset forth on Exhibit I;
(viiiv) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party the Parent with respect to each of the officers of such Loan Party the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which such Loan Party the Parent or the Borrower is a party, party and in the case of the Borrower, the officers of the Borrower then authorized to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, Notices of Conversion and Conversion, Notices of Continuation Continuation, Notices of Swingline Borrowing and to request the issuance of requests for Letters of Credit;
(ixvi) a certified copy (certified by the Secretary or Assistant Secretary of the Parent) of all necessary action taken by the Parent to authorize the execution, delivery and performance of the Loan Documents to which either the Parent or the Borrower is a party;
(vii) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Parent, the Borrower and each other Loan PartyGuarantor, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copyPerson;
(xviii) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Parent, the Borrower and each other Loan Party Guarantor (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan PartyGuarantor) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state State of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Borrowing Base Property Person is located, if different from the state of formation of such Personrequired to be so qualified;
(xiix) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party;
(x) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Parent, the Borrower and each other Loan Party Guarantor of the by-laws of such Person, 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 any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(xiixi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party Guarantor of all corporate, partnership, member or other necessary action taken by each such Loan Party Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xii) a copy of the Crown Merger Agreement and any other material documents executed in connection therewith requested by the Agent, together with all amendments and supplements thereto, certified by a officer of the Parent to be true, correct and complete copies and in full force and effect;
(xiii) the Disbursement Instruction Agreement executed by the Borrower effective as a certificate of the chief executive officer, chief financial officer or other senior officer of the Parent stating that all conditions precedent to the consummation of the Crown Transaction as set forth in the Crown Merger Agreement Datehave been satisfied or waived, together with a file-stamped copies of the articles of merger of PREIT and Crown filed with the Secretary of the Commonwealth of the Commonwealth of Pennsylvania and the Secretary of State of the State of Maryland;
(xiv) [intentionally omitted];
(xv) evidence satisfactory to a letter from the Administrative Agent administrative agent under each of the Existing Credit Agreements providing information regarding the payment in full of or satisfaction amounts outstanding thereunder (other than the Letters of all amounts due to all lenders under Credit described on Schedule 2.2.(a)) and providing for the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.5, together with all other fees, expenses and reimbursement (including, without limitation, all fees, charges and disbursements of counsel to the Administrative Agent, and the fees and expenses of any local counsel, appraisers, consultants and other advisors) amounts then due and payable to the Administrative Agent and any of the Lenders for which payment has been demanded, have been paid or will be paid at closing;
(xvii) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable to the Requisite Lenderstermination thereof; and
(xviiixv) a duly executed such other documents and delivered modification to instruments as the Agent, or an agreement to modify any Lender through the PM Gallery Loan AgreementAgent, in form and substance may reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii)request.
(b) In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Agent or 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 the other Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to have a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (iA) have a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(ciii) The Parent, the Borrower and 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 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, 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, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower Borrower, the Parent or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(d) The Borrower and each other Loan Party shall have provided (i) all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act and (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each Lender.
(e) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests pledged pursuant to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 1 contract
Samples: Credit Agreement (Pennsylvania Real Estate Investment Trust)
Initial Conditions Precedent. The effectiveness obligation of each Lender to make the initial Advance under this Agreement and the obligation of the Administrative Agent, the Issuing Banks and 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 deemed issuance) of a Letter of Credit, are is subject to the satisfaction or waiver fulfilment of the following conditions precedent:
precedent at the time such Advance is made (a) The Administrative Agent shall have received in each of the followingcase, in form and substance satisfactory to the Administrative Agent:, acting reasonably):
(a) no Default or Event of Default has occurred or is continuing or would arise immediately after giving effect to or as a result of such Advance;
(b) such Advance will not violate any Applicable Law;
(c) no order, judgment or decree of any court, arbitrator or Governmental Agency shall purport to enjoin or restrain the Lenders from making an Advance;
(d) there is not pending or threatened, any action, charge, claim, demand, suit, proceeding, petition, governmental investigation or arbitration by, against or affecting any Credit Party or any property of any Credit Party that has not been disclosed to the Administrative Agent by the Borrower in writing, and nothing has occurred and there has been no development in any such action, charge, claim, demand, suit, proceeding, petition, governmental investigation or arbitration that, in the opinion of the Administrative Agent, could reasonably be expected to have a Material Adverse Effect;
(e) each of the representations and warranties of the Borrower contained in Article 5 and of the Credit Parties contained in any other Credit Document are true and correct on the date of the Borrowing Notice relating to such Advance and on the date of such Advance as if such representations and warranties were made on each such date;
(f) there has not occurred any change of circumstance or event since the date hereof, nor has any Administrative Agent become aware of any facts not previously disclosed or known, which the Administrative Agent determines could have a Material Adverse Effect;
(g) delivery of a certificate from a senior officer of each Credit Party in the form of Exhibit “D”: (i) attaching true copies of (A) the constating documents and by- laws including all amendments thereto, if any, (B) all resolutions of the board of directors or shareholders, as the case may be, approving the borrowing and other matters contemplated by this Agreement and the other Credit Documents to which it is a party and (C) a list of the officers and directors authorized to sign agreements together with their specimen signatures and (ii) certifying that all necessary permits and licenses relating to the operation of, and production at, the San Francisco Mine have been obtained and none have been rescinded, cancelled or otherwise terminated in any respect;
(h) delivery of a certificate of status, compliance or like certificate with respect to each of the Credit Parties issued by the appropriate Governmental Entity of the jurisdiction of its incorporation and of each jurisdiction in which it owns any material assets or carries on any material business;
(i) counterparts delivery of this Agreement executed by a solvency certificate from the chief financial officer of the Borrower in the form of Exhibit “C”;
(j) each of the Credit Documents specified in Section 2.10 have been duly executed and delivered by each Credit Party thereto and is in full force and effect enforceable against such parties heretothereto in accordance with its respective terms;
(iik) Revolving Notes evidence of registration or other perfection of the Security under the Security Documents in such jurisdictions as the Administrative Agent may require to ensure that such Security creates legal, valid, binding, enforceable and Term Notes executed by first- priority security interests in the Borrowerassets to which such Security relates, payable to each applicable Lender (excluding any Lender that has requested that it not receive a Note) enforceable against third parties, trustees in bankruptcy and complying with the terms of Section 2.13similar officials;
(iiil) counterparts delivery of all discharges, subordination agreements, waivers and confirmations as may be required to ensure that all obligations under the Credit Documents are secured by first priority Liens on the property and assets of each Credit Party with such exceptions as are permitted pursuant to this Agreement or any of the Security Documents executed (and acknowledged, if applicable) by each of the parties thereto;
(iv) counterparts of the Guaranty executed by each of the Guarantors initially party thereto;
(v) counterparts of the Intercreditor Agreement executed by each of the parties thereto;
(vi) complete and correct copies of the executed Second Lien other Credit Documents;
(viim) an opinion delivery of favourable opinions of counsel to the Borrower each Credit Party, in customary form and the other Loan Parties addressing customary matters, addressed to the Administrative Agent, the Issuing Banks and the Lenders and covering such matters as Administrative Agent’s Counsel;
(n) evidence showing the Administrative Agent may reasonably request;
(viii) 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, the officers of the Borrower then authorized to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, Notices of Conversion Finance Parties) as loss payee and Notices of Continuation and to request the issuance of Letters of Creditadditional insured on each Credit Party’s insurance policies;
(ixo) all Fees and other amounts then payable under the certificate or articles of incorporation, 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 as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(x) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (Credit Documents and any state department of taxation, as applicable) of each state in which such Borrowing Base Property is located, if different from the state of formation of such Person;
(xi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of the by-laws of such Person, 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 any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(xii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiii) the Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xiv) [intentionally omitted];
(xv) evidence satisfactory to the Administrative Agent of the payment in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.5, together with all other feesreasonable costs, expenses and reimbursement disbursements (including, without limitation, all fees, charges and disbursements of counsel to the Administrative Agent, and the legal fees and expenses of any local counsel, appraisers, consultants and other advisorsexpenses) amounts then due and payable to incurred by the Administrative Agent or any Lender in connection with the negotiation, preparation, execution and delivery of the Credit Documents and any due diligence or other matters relating to any of the Lenders for which payment has transactions contemplated in any of the Credit Documents have been demandedpaid in full;
(p) evidence of repayment in full of all the Notes and evidence that the Note Indenture, each of the Notes and all guarantees and all Liens (and all other documents, instruments, registrations, filings and similar evidence) relating thereto have been or will, simultaneously with such Advance, have been paid indefeasibly, fully and unconditionally terminated, discharged and released and none of the Credit Parties has any obligation or will be paid at closingliability in relation thereto;
(xviiq) receipt of all Authorizations which the Administrative Agent may require, including, all approvals from the Exchange in relation to the transactions contemplated by this Agreement and/or the other Credit Documents;
(r) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable Borrower has issued 193,237 Common Shares to the Requisite LendersOriginal Lender as duly paid and non assessable shares, as payment of the working capital facility bonus; and
(xviiis) a the Borrower has issued 108,696 Common Shares to the Original Lender as duly executed paid and delivered modification to or an agreement to modify the PM Gallery Loan Agreementnon assessable shares, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).
(b) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (i) have a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(c) The Borrower and 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 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, 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, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability payment of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(d) The Borrower and each other Loan Party shall have provided (i) all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act and (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each Lenderstandby facility break fee.
(e) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests pledged pursuant to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 1 contract
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks and 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 deemed issuance) of a Letter of Credit, are 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 Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes, Term Notes and Term and, if applicable, Bid Rate Notes executed by the Borrower, payable to each applicable Lender (excluding any Lender that has requested that it not receive a Note) Note and complying with the terms applicable provisions of Section 2.13;2.12. and the Swingline Note executed by the Borrower; 4889-7534-3155, v. 14
(iii) counterparts of The Guaranty executed by the Security Documents executed (and acknowledged, if applicable) by each of the parties theretoParent;
(iv) counterparts An opinion of the Guaranty executed by each general counsel of the Guarantors initially party theretoParent and the other Loan Parties, addressed to the Administrative Agent and the Lenders, addressing the matters set forth in Exhibit I;
(v) counterparts of the Intercreditor Agreement executed by each of the parties thereto;
(vi) complete and correct copies of the executed Second Lien Documents;
(vii) an An opinion of Xxxxxxxx & Xxxxxx PC, counsel to the Borrower and the other Loan Parties addressed to the Administrative Agent, the Issuing Banks and the Lenders and covering such matters as addressed to the Administrative Agent may reasonably requestand the Lenders, addressing the enforceability of the Loan Documents;
(viiivi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party the Parent with respect to each of the officers of such Loan Party the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which such Loan Party the Parent or the Borrower is a party, party and in the case of the Borrower, the officers of the Borrower then authorized to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) ), on behalf of the Borrower Borrower, Notices of Revolving Borrowing, Notice of Term Loan Borrowing, Notices of Conversion and Conversion, Notices of Continuation Continuation, Notices of Swingline Borrowing and to request the issuance of requests for Letters of Credit;
(ixvii) a certified copy (certified by the Secretary or Assistant Secretary of the Parent) of all necessary action taken by the Parent to authorize the execution, delivery and performance of the Loan Documents to which either the Parent or the Borrower is a party;
(viii) the certificate or articles declaration of incorporation, articles trust of organization, the Parent and the certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) partnership of the Borrower and Borrower, in each other Loan Partycase, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copyPerson;
(xix) a Certificate certificate of Good Standing good standing or certificate of similar meaning with respect to (A) the Parent and the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state State of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which each such Borrowing Base Property Person is located, if different from the state of formation of such Personrequired to be so qualified where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(xix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Parent and the Borrower and each other Loan Party of the by-laws of such Person, if a corporation, the operating agreement, if a Parent and the 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 any agreement of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copyBorrower;
(xiixi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiii) the Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xiv) [intentionally omitted];
(xv) evidence satisfactory to the Administrative Agent of the payment in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.53.6., together with all and any other feesFees payable to the Administrative Agent, the Titled Agents and the Lenders on or prior to the Effective Date, and of the reasonable costs and expenses of the Administrative Agent and reimbursement the Titled Agent (including, without limitation, all the fees, charges and disbursements of counsel to the Administrative Agent);
(xii) a Compliance Certificate calculated as of September 30, 2022, giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date; 4889-7534-3155, v. 14
(xiii) (A) All documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including USA PATRIOT Act, and a properly completed and signed IRS Form W-8 or W-9, as applicable, for each Loan Party, in each case at least five days prior to the fees Effective Date, and expenses (B) at least five days prior to the Effective Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Loan Party;
(xiv) a Notice of any local counselRevolving Borrowing and a Notice of Term Loan Borrowing;
(xv) a payoff letter reasonably satisfactory to the Administrative Agent evidencing repayment in full and termination of all loans, appraisers, consultants commitments and other advisorsobligations under the Existing Revolver Credit Agreement and the Existing Term Loan Agreement, termination of all agreements relating thereto and the release of all Liens granted in connection therewith, if any, with Uniform Commercial Code or other appropriate termination statements and documents effective to evidence the foregoing, in each case subject only to repayment in full;
(xvi) amounts then due The results of a recent UCC lien search in the jurisdiction of organization of the Borrower and payable the Parent, which search results shall reveal no Liens on any of the assets of the Borrower or Parent except for Liens permitted by Section 9.4;
(xvii) A certificate signed by a Responsible Officer, certifying that the conditions set forth in Section 5.1.(b) have been satisfied;
(xviii) such other documents, agreements and instruments as the Administrative Agent on behalf of the Lenders may reasonably request; and
(b) In the good faith judgment of the Administrative Agent and the Lenders:
(i) Both immediately before and immediately after giving effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date, (A) no Default or Event of Default exists, (B) the representations and warranties made or deemed made by each Loan Party in the Loan Documents to which it is a party are true and correct in all respects on and as of the Effective Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties are true and correct in all respects on and as of such earlier date);
(ii) 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 Borrower and its Subsidiaries delivered to the Administrative Agent and any of the Lenders for which payment prior to the Agreement Date that has been demanded, have been paid had or will could reasonably be paid at closingexpected to result in a Material Adverse Effect;
(xvii) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable to the Requisite Lenders; and
(xviii) a duly executed and delivered modification to or an agreement to modify the PM Gallery Loan Agreement, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).
(biii) 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) have result in a Material Adverse Effect or (ii2) restrain or enjoin, impose 4889-7534-3155, v. 14 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;
(civ) The Borrower and the other Loan Parties 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 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, or the failure to make, give or receive which, which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) 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; and
(dv) 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 (i) all information requested adversely affect the transactions contemplated by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act and (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each LenderLoan Documents.
(e) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests pledged pursuant to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 1 contract
Samples: Credit Agreement (Corporate Office Properties Trust)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks Agent and 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 deemed issuance) of a Letter of Credit, hereunder 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 and Term Notes executed by the Borrower, payable to each applicable Lender (excluding any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.13;
(iii) counterparts of the Security Documents executed (and acknowledged, if applicable) by each of the parties thereto;
(iv) counterparts of the Guaranty executed by each of the Guarantors initially party thereto;
(v) counterparts of the Intercreditor Agreement executed by each of the parties thereto;
(vi) complete and correct copies of the executed Second First Lien Documents;
(vii) an opinion of counsel to the Borrower and the other Loan Parties addressed to the Administrative Agent, the Issuing Banks Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(viii) 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, the officers of the Borrower then authorized to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation and to request the issuance of Letters of CreditContinuation;
(ix) the certificate or articles of incorporation, 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 as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(x) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Borrowing Base Property is located, if different from the state of formation of such Person;
(xi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of the by-laws of such Person, 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 any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(xii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiii) the Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xiv) [intentionally omitted];
(xv) evidence satisfactory to the Administrative Agent of the payment or satisfaction in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.5, together with all other fees, expenses and reimbursement (including, without limitation, all fees, charges and disbursements of counsel to the Administrative Agent, and the fees and expenses of any local counsel, appraisers, consultants and other advisors) amounts then due and payable to the Administrative Agent and any of the Lenders for which payment has been demanded, have been paid or will be paid at closing;
(xvii) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable to the Requisite Lenders; and
(xviii) a duly executed and delivered modification to or an agreement to modify the PM Gallery Loan Agreement, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).
(b) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (i) have a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(c) The Borrower and 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 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, 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, 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
(d) The Borrower and each other Loan Party shall have provided (i) all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act and (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each Lender.
(e) With respect to (x) any original stock certificates or other certificates evidencing the certificated Equity Interests pledged pursuant to the Security Documents, the Borrower shall have delivered to the First Lien Administrative Agent, subject to the terms of the Intercreditor Agreement, each such certificate together with an undated stock power for such certificate duly executed in blank by the registered owner thereof, (y) any original promissory note pledged pursuant to the Security Documents, the Borrower shall have delivered to the First Lien Administrative Agent, subject to the terms of the Intercreditor Agreement, each such promissory note together with an undated allonge for such promissory note duly executed in blank by the holder thereof, and (z) any other personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests pledged pursuant to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof[intentionally omitted;]
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
(ii) Appraisals of all Borrowing Base Properties;
(iii) a policy or policies of title insurance (or a commitment on behalf of the title insurance company to issue its title policy as of the Effective Date in the form of a pro forma policy approved by the Administrative Agent) in the amount equal to (x) 125% of the Closing Date Appraised Value of such Borrowing Base Property, minus (y) the Allocated Loan Amount (as defined in the First Lien Credit Agreement) of such Borrowing Base Property, by Xxxxxxx Title Guaranty Company (the “Title Company”), with re-insurance in the amounts and from such other title companies as the Administrative Agent requires, insuring the Lien of each such Mortgage as a second priority Lien on the real property described therein, free of any other Liens except for Permitted Liens, together with such customary endorsements as the Administrative Agent may reasonably request to the extent available in the applicable jurisdiction at commercially reasonable rates and available based upon the existing survey and zoning reports for such Borrowing Base Property, together with evidence reasonably satisfactory to the Administrative Agent of payment of all expenses and premiums of the Title Company and all other sums required in connection with the issuance of each title policy and all recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Mortgages in the appropriate real estate records;
(iv) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each such real property location in the United States (together with a notice about special flood hazard area status and flood disaster assistance, which, if applicable, shall be duly executed by the applicable Loan Party relating to such real property) and (B) if any such real property is located in an area determined by the Federal Emergency Management Agency to have special flood hazards, evidence of such flood insurance as may be required under Applicable Law, including Regulation H of the FRB and the other Flood Insurance Laws and as required under Section 8.6;
(v) customary legal opinions in form and substance reasonably satisfactory to the Administrative Agent with respect to the mortgagor of such Mortgage and the enforceability and perfection of the applicable Mortgage and such other matters as the Administrative Agent shall reasonably require;
(vi) owner’s title affidavits in reasonable form if necessary to induce the Title Company to issue the title policies and endorsements contemplated above; and
(vii) zoning reports with respect to each Borrowing Base Property.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Pennsylvania Real Estate Investment Trust)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks and 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 deemed issuance) of a Letter of Credit, are 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 and Term Notes executed by the Borrower, payable to each applicable Lender (excluding any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.132.12
(a) and the Swingline Note executed by the Borrower;
(iii) counterparts of the Security Documents executed (and acknowledged, if applicable) by each of the parties thereto;
(iv) counterparts of the Guaranty executed by each of the Guarantors initially to be a party thereto;
(v) counterparts of the Intercreditor Agreement executed by each of the parties thereto;
(vi) complete and correct copies of the executed Second Lien Documents;
(viiiv) an opinion of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel to the Parent, the Borrower and the other Loan Parties Parties, addressed to the Administrative Agent, the Issuing Banks Agent and the Lenders and covering such the matters as the Administrative Agent may reasonably requestset forth in Exhibit L;
(viiiv) 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 as of a recent date by the Secretary of State of the state of formation of such Loan Party (or certification from the Secretary of the applicable Loan Party that there have been no changes thereto since the Original Closing Date);
(vi) 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;
(vii) 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, the officers of the Borrower then authorized to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation and to request the issuance of Letters of CreditContinuation;
(ix) the certificate or articles of incorporation, 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 as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(x) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Borrowing Base Property is located, if different from the state of formation of such Person;
(xiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of (A) the by-laws of such PersonLoan 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 any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
entity and (xiiB) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiiiix) a Maximum Loan Availability Certificate calculated as of the Effective Date;
(x) Appraisals of all Secured Pool Properties, together with all other due diligence reasonably requested by the Administrative Agent with respect to each Secured Pool Property, including, to the extent requested by the Administrative Agent, the items set forth on Schedule 6.1 hereto;
(xi) a Compliance Certificate calculated on a pro forma basis for the Parent’s fiscal quarter ending March 31, 2015;
(xii) a Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xiii) evidence that all accrued and unpaid interest, fees and expenses then due and owing by the Loan Parties under the Existing Credit Agreement as of the Effective Date shall have been paid in full;
(xiv) [intentionally omitted]copies of all Specified Derivatives Contracts in existence on the Agreement Date;
(xv) evidence satisfactory to the Administrative Agent copies of the payment in full form of or satisfaction Tenant Lease to be used for each Property from the Effective Date until the Revolving Termination Date and each Tenant Lease entered into as of all amounts due the Agreement Date with respect to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreementsuch Property;
(xvi) evidence satisfactory to the Administrative Agent that the Fees Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement (includingamounts due and payable to the Administrative Agent, the Arrangers and any of the Lenders pursuant to the Fee Letters or pursuant to the terms of this Agreement, including without limitation, all fees, charges the fees and disbursements expenses of counsel to the Administrative Agent, and the fees and expenses of any local counsel, appraisers, consultants and other advisors) amounts then due and payable to the Administrative Agent and any of the Lenders for which payment has been demanded, have been paid or will be paid at closingpaid;
(xvii) insurance certificates, or other evidence, providing that the Effective Date Annual Business Planinsurance coverage required under Section 8.5 (including, which without limitation, both property and liability insurance) is in full force and effect and stating that the coverage shall not be in form and substance reasonably acceptable cancelable or materially changed without ten (10) days prior written notice to the Requisite Administrative Agent of any cancellation for nonpayment of premiums, and not less than thirty (30) days prior written notice to the Administrative Agent of any other cancellation or any modification (including a reduction in coverage), together with appropriate evidence that the Administrative Agent, for its benefit and the benefit of the Lenders, the Issuing Banks, and the Specified Derivatives Providers is named as a mortgagee lender’s loss payee and additional insured, as appropriate, on all insurance policies that the Borrower, any Loan Party or any other Subsidiary actually maintains with respect to any Property and improvements on such Property; and
(xviii) a duly executed such other documents, agreements and delivered modification to instruments as the Administrative Agent, or an agreement to modify any Lender through the PM Gallery Loan AgreementAdministrative Agent, in form and substance may reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).request;
(b) No 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 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 which could reasonably be expected to (iA) have result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect affect, the ability of the Parent or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(cd) The Borrower and the Parent, the Borrower, the other Loan Parties and 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 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, 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, 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;
(de) The the Borrower and each other Loan Party shall have provided (i) all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act and (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each Lender.
(e) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests pledged pursuant to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral AgreementAct; and
(vf) UCC-1 Financing Statements filed (there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to be filed concurrently with materially and adversely affect the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized transactions contemplated by the applicable Security DocumentLoan Documents.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 1 contract
Samples: Credit Agreement (Tier Reit Inc)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks and 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 deemed issuance) of a Letter of Credit, are is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by an authorized officer of Borrower, 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 Administrative Agent (and, where indicated, each of the Administrative Agent:Lenders):
(i) counterparts Counterparts of this Agreement executed by each of the parties heretohereto in form and substance satisfactory to Administrative Agent and each Lender;
(ii) With respect to any Lender requesting Notes pursuant to Section 2.11(b), a Revolving Notes and Term Notes executed by Note, in the Borrowerform of Exhibit E-1, one payable to each applicable such requesting Lender (excluding any Lender that has requested that it not receive a Note) and complying with as the terms of Section 2.13case may be);
(iii) counterparts If requested by Swing Line Lender pursuant to Section 2.11(b), a Swing Line Note in the form of the Security Documents executed (and acknowledgedExhibit E-2, if applicable) by each of the parties theretopayable to Swing Line Lender;
(iv) counterparts Copies (certified by the Secretary or Assistant Secretary of Borrower) of the Guaranty executed by each Articles of the Guarantors initially party theretoIncorporation and Bylaws of Borrower;
(v) counterparts An opinion of Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP, counsel to Borrower, addressed to Administrative Agent and Lenders, in substantially the Intercreditor Agreement executed by each form of the parties theretoExhibit F;
(vi) complete and correct copies of the executed Second Lien Documents;
(vii) an opinion of counsel to the Borrower and the other Loan Parties addressed to the Administrative Agent, the Issuing Banks and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(viii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party Borrower with respect to each of the officers of such Loan Party Borrower authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, the officers of the Borrower then authorized to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, LC Agreements, Notices of Conversion Continuation, and Notices of Continuation and to request the issuance of Letters of CreditConversion;
(ixvii) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument Copies (if any) of the Borrower and each other Loan Party, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(x) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Borrowing Base Property is located, if different from the state of formation of such Person;
(xi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functionsof Borrower) of the Borrower and each other Loan Party of the by-laws of such Person, 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 any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(xii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary corporate action taken by each such Loan Party Borrower to authorize the execution, delivery delivery, and performance of the Loan Documents to which it is a partyDocuments;
(xiiiviii) A copy of each of the Disbursement Instruction Agreement executed documents, instruments, and agreements evidencing any of the Debt described on Schedule 6.1(g) and a copy of each Material Contract described on Schedule 6.1(h), certified as true, correct, and complete by the Borrower effective as chief financial officer of the Agreement DateBorrower;
(xivix) [intentionally omitted]The Fees then due as described in or referenced by Section 3.8;
(xvx) evidence satisfactory to A Compliance Certificate calculated as of June 30, 2005;
(xi) Evidence that all “Obligations” (as such term is defined in the Administrative Agent Existing Agreement) other than unmatured “Obligations” (as so defined) in respect of Existing Letters of Credit have been, or concurrently with the payment in full of or satisfaction of Effective Date are being, repaid by Borrower and that all amounts due to all lenders “commitments” under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;have been terminated.
(xvixii) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.5, together with all other fees, expenses and reimbursement A certificate from Borrower (including, without limitation, all fees, charges and disbursements of counsel to the Administrative Agent, and the fees and expenses of any local counsel, appraisers, consultants and other advisors) amounts then due and payable to the Administrative Agent and any of the Lenders for which payment has been demanded, have been paid or will be paid at closing;
(xvii) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable satisfactory to Administrative Agent), certifying that as of the Effective Date:
(A) there shall not have occurred any event, condition, situation, or status since the date of the information contained in (i) the financial and business projections, budgets, pro forma data, and forecasts concerning Borrower and its Subsidiaries delivered to Administrative Agent and Lenders prior to the Requisite Lenders; and
Effective Date or (xviiiii) the facts or information represented or provided to Lenders prior to the Effective Date as set forth in the Reference 10-K or in Borrower’s most recent 10-Q or represented or provided by Borrower in the meeting with Lenders conducted on September 12, 2005, which event, condition, situation, or status has had or could reasonably be expected to result in a duly executed and delivered modification to material adverse change in the business, assets, liabilities (actual or an agreement to modify the PM Gallery Loan Agreement, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”contingent), providing for the modifications outlined on the Summary operations, financial condition, or business prospects of Terms set forth on Schedule 6.1(a)(xviii)Borrower and its Subsidiaries, taken as a whole since December 31, 2004.
(bB) No there is no litigation, action, suit, investigation investigation, or other arbitral, administrative administrative, or judicial proceeding shall be pending or or, to the knowledge of Borrower, threatened which could reasonably be expected to (ix) have result in a Material Adverse Effect or (iiy) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of any Loan Party Borrower to fulfill its obligations under the Loan Documents to which it is a party;Documents; or (z) materially and adversely affect the rights and remedies of Administrative Agent or Lenders under the Loan Documents.
(cC) The Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents 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 under, conflict with, or violation of (ix) any Applicable Law or (iiy) any agreement, document document, or instrument to which Borrower or any Loan Party Subsidiary is a party or by which any of them or their respective properties is boundbound (including without limitation, the Senior Note Agreements), except for such approvals, consents, waivers, filings filings, and notices the receipt, making making, or giving of which, or the failure to make, give or receive which, which would not reasonably be likely to (A1) have a Material Adverse Effect, or (B2) 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 partyDocuments; and
(dxiii) The Borrower Such other documents, agreements and each other Loan Party shall have provided instruments as Administrative Agent on behalf of Lenders may reasonably request.
(ib) all information requested by In the good faith judgment of Administrative Agent and Lenders, 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. Without limiting the generality of the provisions of Section 11.4, for purposes of determining compliance with the conditions specified in this Section 5.1, each Lender in order that has signed this Agreement shall be deemed to comply with applicable “know your customer” and anti-money laundering rules and regulationshave consented to, including without limitationapproved or accepted or to be satisfied with, the Patriot Act and (ii) any Borrower that qualifies as each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each Lender.
(e) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Lender unless Administrative Agent shall have received each of the following, in form and substance satisfactory notice from such Lender prior to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests pledged pursuant to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Documentproposed Closing Date specifying its objection thereto.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 1 contract
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks and 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 deemed issuance) of a Letter of Credit, are is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by an authorized officer of Borrower, 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 Administrative Agent (and, where indicated, each of the Administrative Agent:Lenders):
(i) counterparts Counterparts of this Agreement executed by each of the parties heretohereto in form and substance satisfactory to Administrative Agent and each Lender;
(ii) With respect to any Lender requesting Notes pursuant to Section 2.11(b), a Revolving Notes and Term Notes executed by Note, in the Borrowerform of Exhibit E-1, one payable to each applicable such requesting Lender (excluding any Lender that has requested that it not receive a Note) and complying with as the terms of Section 2.13case may be);
(iii) counterparts If requested by Swing Line Lender pursuant to Section 2.11(b), a Swing Line Note in the form of the Security Documents executed (and acknowledgedExhibit E-2, if applicable) by each of the parties theretopayable to Swing Line Lender;
(iv) counterparts Copies (certified by the Secretary or Assistant Secretary of Borrower) of the Guaranty executed by each Articles of the Guarantors initially party theretoIncorporation and Bylaws of Borrower;
(v) counterparts An opinion of Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP, counsel to Borrower, addressed to Administrative Agent and Lenders, in substantially the Intercreditor Agreement executed by each form of the parties theretoExhibit F;
(vi) complete and correct copies of the executed Second Lien Documents;
(vii) an opinion of counsel to the Borrower and the other Loan Parties addressed to the Administrative Agent, the Issuing Banks and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(viii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party Borrower with respect to each of the officers of such Loan Party Borrower authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, the officers of the Borrower then authorized to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, LC Agreements, Notices of Conversion Continuation, and Notices of Continuation and to request the issuance of Letters of CreditConversion;
(ixvii) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument Copies (if any) of the Borrower and each other Loan Party, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(x) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Borrowing Base Property is located, if different from the state of formation of such Person;
(xi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functionsof Borrower) of the Borrower and each other Loan Party of the by-laws of such Person, 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 any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(xii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary corporate action taken by each such Loan Party Borrower to authorize the execution, delivery delivery, and performance of the Loan Documents to which it is a partyDocuments;
(xiiiviii) A copy of each of the Disbursement Instruction Agreement executed documents, instruments, and agreements evidencing any of the Debt described on Schedule 6.1(g) and a copy of each Material Contract described on Schedule 6.1(h), certified as true, correct, and complete by the Borrower effective as chief financial officer of the Agreement DateBorrower;
(xivix) [intentionally omitted];
(xv) evidence satisfactory to the Administrative Agent Payment of the payment in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the Fees then due and payable under as described in or referenced by Section 3.5, together with all other fees, expenses and reimbursement (including, without limitation, all fees, charges and disbursements of counsel to the Administrative Agent, and the fees and expenses of any local counsel, appraisers, consultants and other advisors) amounts then due and payable to the Administrative Agent and any of the Lenders for which payment has been demanded, have been paid or will be paid at closing3.8;
(xviix) A Compliance Certificate calculated as of December 31, 2007;
(xi) Evidence that all “Obligations” (as such term is defined in the Existing Agreement) other than unmatured “Obligations” (as so defined) in respect of Existing Letters of Credit have been, or concurrently with the Effective Date Annual Business Planare being, which shall be repaid by Borrower and that all “commitments” under the Existing Agreement have been terminated.
(xii) A certificate from Borrower (in form and substance reasonably acceptable satisfactory to Administrative Agent), certifying that as of the Effective Date:
(A) there shall not have occurred any event, condition, situation, or status since the date of the information contained in (i) the financial and business projections, budgets, pro forma data, and forecasts concerning Borrower and its Subsidiaries delivered to Administrative Agent and Lenders prior to the Requisite Lenders; and
Effective Date or (xviiiii) the facts or information represented or provided to Lenders prior to the Effective Date as set forth in the Reference 10-K or represented or provided by Borrower in the meeting with Lenders conducted on March 6, 2008, which event, condition, situation, or status has had or could reasonably be expected to result in a duly executed and delivered modification to material adverse change in the business, assets, liabilities (actual or an agreement to modify the PM Gallery Loan Agreement, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”contingent), providing for the modifications outlined on the Summary operations, financial condition, or business prospects of Terms set forth on Schedule 6.1(a)(xviii)Borrower and its Subsidiaries, taken as a whole since December 31, 2007.
(bB) No there is no litigation, action, suit, investigation investigation, or other arbitral, administrative administrative, or judicial proceeding shall be pending or or, to the knowledge of Borrower, threatened which could reasonably be expected to (ix) have result in a Material Adverse Effect or (iiy) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of any Loan Party Borrower to fulfill its obligations under the Loan Documents to which it is a party;Documents; or (z) materially and adversely affect the rights and remedies of Administrative Agent or Lenders under the Loan Documents.
(cC) The Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents 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 under, conflict with, or violation of (ix) any Applicable Law or (iiy) any agreement, document document, or instrument to which Borrower or any Loan Party Subsidiary is a party or by which any of them or their respective properties is boundbound (including without limitation, the Senior Note Agreements), except for such approvals, consents, waivers, filings filings, and notices the receipt, making making, or giving of which, or the failure to make, give or receive which, which would not reasonably be likely to (A1) have a Material Adverse Effect, or (B2) 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 partyDocuments; and
(dxiii) The Borrower Such other documents, agreements and each other Loan Party shall have provided instruments as Administrative Agent on behalf of Lenders may reasonably request.
(ib) all information requested by In the good faith judgment of Administrative Agent and Lenders, 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. Without limiting the generality of the provisions of Section 11.4, for purposes of determining compliance with the conditions specified in this Section 5.1, each Lender in order that has signed this Agreement shall be deemed to comply with applicable “know your customer” and anti-money laundering rules and regulationshave consented to, including without limitationapproved or accepted or to be satisfied with, the Patriot Act and (ii) any Borrower that qualifies as each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each Lender.
(e) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Lender unless Administrative Agent shall have received each of the following, in form and substance satisfactory notice from such Lender prior to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests pledged pursuant to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Documentproposed Closing Date specifying its objection thereto.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 1 contract
Initial Conditions Precedent. 7.1 The effectiveness of this Agreement and the obligation obligations of the Administrative Agent, the Issuing Banks and 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 deemed issuance) of a Letter of Credit, Lessor under this Master Agreement are subject to receipt by the satisfaction or waiver Lessor of the following conditions precedent:
(a) The Administrative Agent shall have received documents and evidence, each of the following, in form and substance satisfactory to the Administrative AgentLessor:
(ia) counterparts A copy of this Agreement executed by the constitutional documents of each of the parties heretoLessee and Terrane;
(iib) Revolving Notes and Term Notes executed by the Borrower, payable to each applicable Lender (excluding any Lender that has requested that it not receive A copy of a Note) and complying with the terms of Section 2.13;
(iii) counterparts resolution of the Security Documents executed (and acknowledged, if applicable) by board of directors of each of the parties thereto;
(iv) counterparts of Lessee and Terrane: approving the Guaranty executed by each of the Guarantors initially party thereto;
(v) counterparts of the Intercreditor Agreement executed by each of the parties thereto;
(vi) complete and correct copies of the executed Second Lien Documents;
(vii) an opinion of counsel to the Borrower terms of, and the other Loan Parties addressed to the Administrative Agenttransactions contemplated by, the Issuing Banks and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(viii) 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 Lease Documents to which such Loan Party it is a partyparty and resolving that it execute, deliver and in perform the case of the Borrower, the officers of the Borrower then authorized to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation and to request the issuance of Letters of Credit;
(ix) the certificate or articles of incorporation, 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 as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(x) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Borrowing Base Property is located, if different from the state of formation of such Person;
(xi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of the by-laws of such Person, 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 any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(xii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Lease Documents to which it is a party;
(xiii) ; authorising a specified person or persons to execute the Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xiv) [intentionally omitted];
(xv) evidence satisfactory Lease Documents to the Administrative Agent of the payment in full of which it is a party on its behalf; authorising a specified person or satisfaction of persons, on its behalf, to sign and/or dispatch all amounts due to all lenders under the Existing Revolver/Term Loan Agreement documents and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.5, together with all other fees, expenses and reimbursement notices (including, without limitationif relevant, all fees, charges and disbursements of counsel any Utilisation Notice) to be signed and/or dispatched by it under or in connection with the Administrative Agent, and the fees and expenses of any local counsel, appraisers, consultants and other advisors) amounts then due and payable to the Administrative Agent and any of the Lenders for which payment has been demanded, have been paid or will be paid at closing;
(xvii) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable to the Requisite Lenders; and
(xviii) a duly executed and delivered modification to or an agreement to modify the PM Gallery Loan Agreement, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).
(b) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (i) have a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of any Loan Party to fulfill its obligations under the Loan Lease Documents to which it is a party;
(c) The Borrower and 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 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, 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, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability A specimen of the Borrower or any other Loan Party signature of each person authorised by the resolution referred to fulfill its obligations under in paragraph (b) above in relation to the Loan Lease Documents to which it is a party; andand related documents;
(d) The Borrower A certificate of an authorised signatory of each of the Lessee and Terrane certifying that each other Loan Party shall have provided document relating to it specified in clauses (ia) all information requested and (b) of this Section 7.1 is correct, complete and in full force and effect and has not been amended, rescinded or superseded as at a date no earlier than the date of this Master Agreement;
(e) This Master Agreement and any COCP purporting to act as a master agreement or to affect more than individual items of Equipment, executed by the Administrative Agent parties thereto;
(f) A copy of the property insurance policy covering the Lessee and each Lender Terrane and written evidence that the premiums due thereunder have, to the extent fallen due, been paid in order full;
(g) A copy, certified by an authorized signatory of the Lessee to comply be a true copy, of the latest available audited financial statements of the Lessee and its subsidiaries on a consolidated basis, as required pursuant to Section 13.1, and a certificate of an authorized signatory of Lessee that: A) Lessee has a Fully Funded Business Plan for the Project; and (B) a copy of the Lessee’s consolidated cash flow model, updated from that delivered to Lessor in November, 2010, is attached to such certificate;
(h) Evidence of compliance by the Lessee with applicable all “know your customer” requirements of applicable law and anti-money laundering rules regulation;
(i) The Lessor having received from, and regulations, including without limitationagreed with, the Patriot Act Lessee a generic list of Equipment to become subject of the Leases contemplated by this Master Agreement;
(j) Evidence that the fees, costs and expenses then due from the Lessee to the Lessor pursuant to this Master Agreement or otherwise have been paid or shall be paid by the first Utilisation Date;
(k) Confirmation that i) no Event of Default or Default or fact or circumstance that with the giving of notice or passage of time or both would constitute same has occurred and is continuing; ii) any Borrower that qualifies as a “legal entity customer” no default or event of default exists under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower Senior Credit Agreement or the Royal Gold Purchase Agreement; and iii) all material consents, approvals, licenses and authorizations necessary for the Lessee or Terrane with respect to the Administrative Agent development of the Project have been obtained, and each Lender.no default or non-compliance exists under or with respect thereto;
(el) With respect to any personal property owned by a Borrower or Loan Party and that is part Confirmation of no Material Adverse Effect since the audited consolidated financial statements of the CollateralLessee and its subsidiaries dated December 31, 2010;
(m) Copies of all environmental impact and final feasibility studies (including any available comprehensive technical, commercial and environmental appraisals) prepared for the Administrative Agent shall have received each Project since October 20, 2010, and in the possession of the followingLessee or Terrane; and
(n) A legal opinion of Goodmans LLP, counsel to the Lessee and Terrane as to British Columbia law, in form and substance satisfactory to the Administrative Agent:Lessor.
(i) (A) if certificated, original stock certificates or other certificates evidencing 7.2 The obligation of the certificated Equity Interests pledged pursuant Lessor to lease any Equipment acquired by it to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of Lessee under a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to Lease shall be subject to a control agreement pursuant to receipt by the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing Lessor of the initial Loan hereunder) naming following each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative AgentLessor:
(a) a Lease Contract and a Sub-lease in relation to such Equipment duly signed by the Lessee and a Sub-lessee;
(b) all applicable executed Acceptance Certificates and an executed Supply Contract and COCP, if the Equipment is not covered by a master COCP, for each Lease;
(c) evidence that the execution, delivery and performance of each of the Lease Contract, the Sub-lease and the assignment thereof has been duly authorised by all appropriate action on the part of the Lessee and executed by a duly authorised representative of the Lessee or the Sub-lessee, as the case may be;
(d) evidence that the Lessor shall simultaneously acquire title or have previously acquired title to the Equipment set out in the Lease Contract;
(e) a certificate of each of the Lessee and Sub-lessee (signed by a duly authorised officer) confirming that borrowing or guaranteeing or securing, as appropriate, the Lessee’s obligations under this Master Agreement and any Lease would not cause any borrowing, guarantee, security or similar limit binding on it to be exceeded;
(f) [INTENTIONALLY DELETED];
(g) evidence of the Insurance Certificates being received by the Lessee in accordance with Section 15;
(h) evidence that as of the date of any Utilisation Notice Lessee shall be in compliance with the Consolidated Liquidity covenant set forth in Section 7.1(c) of the Senior Credit Agreement;
(i) A Mortgage evidence that no Default or Event of Default shall have occurred and be continuing which has not been waived in writing by the Lessor;
(j) the Cash Deposit or the Deposit LC, if applicable, and the relevant Bridging LC;
(k) proof of any Sub-lessee’s right to insured use and operation of the Equipment under the Sub-lease and the assignment of the Sub-lease;
(l) confirmation that (i) the Lessor has registered a PPSA filing with respect to each such Borrowing Base Equipment listing the Lessor as secured party and the Lessee as debtor with the British Columbia Personal Property duly executed Security Register and delivered (ii) any PPSA filings with respect to the Equipment in favor of other secured parties have been released;
(m) insofar as any advance under the Tranche B Facility or the Tranche C Facility is concerned, confirmation that all conditions precedent to utilisation thereof have been satisfied or waived; and
(n) a copy of any other authorisation or other document, opinion or assurance which the Lessor notifies the Lessee is reasonably necessary in connection with the entry into and performance of the transactions contemplated by any Lease Document then in effect or for the validity and enforceability of any such Lease Document.
7.3 The obligations of the Lessor to permit the Sub-lease of any Equipment to a Sub-lessee (other than Terrane) shall be subject to the prior receipt by the record owner Lessor of such real property the following, each in form and substance satisfactory to the Lessor:
(together a) A copy of the constitutional documents of the Sub-lessee;
(b) A copy of a resolution of the board of directors of the Sub-lessee: approving the terms of, and the transactions contemplated by, the Lease Documents to which it is a party and resolving that it execute, deliver and perform the Lease Documents to which it will be a party upon execution of the applicable joinder documents;
authorising a specified person or persons to execute a joinder to the Lease Documents on its behalf; authorising a specified person or persons, on its behalf, to sign and/or dispatch all documents and notices (including, if relevant, any Utilisation Notice) to be signed and/or dispatched by it under or in connection with UCC fixture filings if requested a joinder to the Lease Documents to which it will be a party;
(c) A specimen of the signature of each person authorised by the Administrative Agentresolution referred to in paragraph (b) above in relation to the joinder to the Lease Documents and related documents;
(d) A certificate of an authorised signatory of the Sub-lessee certifying that each document relating to it specified in this Section 7.3 is correct, complete and in full force and effect and has not been amended, rescinded or superseded as at a date no earlier than the date of this Master Agreement;
(e) Evidence of compliance by the Sub-lessee with all “know your customer” requirements of applicable law and regulation; and
(f) At the request of the Lessor, a legal opinion of Goodmans LLP (or other counsel reasonably satisfactory to the Lessor), which Mortgage counsel to the Sub-lessee as to British Columbia law, in form and substance reasonably satisfactory to the Lessor.
7.4 The lease of the Equipment under each Lease Contract shall have been submitted start on the Start Date for recordation such Equipment. As title to and risk of loss of any Equipment shall pass to the Lessee and all Equipment shall come into the possession or control of the Lessee prior to the Start Date, the Lessee shall, so far as practicable, perform and undertake in favour of the Lessor all of its obligations (other than to pay Lease Payments) under the relevant Lease as if the Lease had commenced.
7.5 This Master Agreement and each Lease Contract when taken together shall create a separate agreement between the parties (a “Lease”) for the lease of the Equipment described in the real property records relevant Lease Contract but so that any Event of Default under any Lease shall be deemed to be an Event of Default under all Leases then in force.
7.6 Subject to and in accordance with the county in which such Borrowing Base Property lies;terms hereof and to the due performance by the Lessee of all its obligations hereunder the Lessor covenants that the Lessee shall, throughout the Lease Period, be entitled peaceably to hold and use the Equipment without interference from the Lessor or anyone claiming through the Lessor.
Appears in 1 contract
Samples: Master Funding and Lease Agreement (Thompson Creek Metals CO Inc.)
Initial Conditions Precedent. The effectiveness obligation of each Lender to make the initial Advance under this Agreement and the obligation of the Administrative Agent, the Issuing Banks and 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 deemed issuance) of a Letter of Credit, are is subject to the satisfaction or waiver fulfilment of the following conditions precedent:
precedent at the time such Advance is made (a) The Administrative Agent shall have received in each of the followingcase, in form and substance satisfactory to the Administrative Agent:, acting reasonably):
(a) no Default or Event of Default has occurred or is continuing or would arise immediately after giving effect to or as a result of such Advance;
(b) such Advance will not violate any Applicable Law;
(c) no order, judgment or decree of any court, arbitrator or Governmental Agency shall purport to enjoin or restrain the Lenders from making an Advance;
(d) there is not pending or threatened, any action, charge, claim, demand, suit, proceeding, petition, governmental investigation or arbitration by, against or affecting any Credit Party or any property of any Credit Party that has not been disclosed to the Administrative Agent by the Borrower in writing, and nothing has occurred and there has been no development in any such action, charge, claim, demand, suit, proceeding, petition, governmental investigation or arbitration that, in the opinion of the Administrative Agent, could reasonably be expected to have a Material Adverse Effect;
(e) each of the representations and warranties of the Borrower contained in Article 5 and of the Credit Parties contained in any other Credit Document are true and correct on the date of the Borrowing Notice relating to such Advance and on the date of such Advance as if such representations and warranties were made on each such date;
(f) there has not occurred any change of circumstance or event since the date hereof, nor has any Administrative Agent become aware of any facts not previously disclosed or known, which the Administrative Agent determines could have a Material Adverse Effect;
(g) delivery of a certificate from a senior officer of each Credit Party in the form of Exhibit “D”:(i) attaching true copies of (A) the constating documents and by- laws including all amendments thereto, if any, (B) all resolutions of the board of directors or shareholders, as the case may be, approving the borrowing and other matters contemplated by this Agreement and the other Credit Documents to which it is a party and (C) a list of the officers and directors authorized to sign agreements together with their specimen signatures and (ii) certifying that all necessary permits and licenses relating to the operation of, and production at, the Mine have been obtained and none have been rescinded, cancelled or otherwise terminated in any respect;
(h) delivery of a certificate of status, compliance or like certificate with respect to each of the Credit Parties issued by the appropriate Governmental Entity of the jurisdiction of its incorporation and of each jurisdiction in which it owns any material assets or carries on any material business;
(i) counterparts delivery of this Agreement executed by a solvency certificate from the chief financial officer of the Borrower in the form of Exhibit “C”;
(j) each of the Credit Documents specified in Section 2.10 have been duly executed and delivered by each Credit Party thereto and is in full force and effect enforceable against such parties heretothereto in accordance with its respective terms;
(iik) Revolving Notes evidence of registration or other perfection of the Security under the Security Documents in such jurisdictions as the Administrative Agent may require to ensure that such Security creates legal, valid, binding, enforceable and Term Notes executed by first- priority security interests in the Borrowerassets to which such Security relates, payable to each applicable Lender (excluding any Lender that has requested that it not receive a Note) enforceable against third parties, trustees in bankruptcy and complying with the terms of Section 2.13similar officials;
(iiil) counterparts delivery of all discharges, subordination agreements, waivers and confirmations as may be required to ensure that all obligations under the Credit Documents are secured by first priority Liens on the property and assets of each Credit Party with such exceptions as are permitted pursuant to this Agreement or any of the Security Documents executed (and acknowledged, if applicable) by each of the parties thereto;
(iv) counterparts of the Guaranty executed by each of the Guarantors initially party thereto;
(v) counterparts of the Intercreditor Agreement executed by each of the parties thereto;
(vi) complete and correct copies of the executed Second Lien other Credit Documents;
(viim) an opinion delivery of favourable opinions of counsel to the Borrower each Credit Party, in customary form and the other Loan Parties addressing customary matters, addressed to the Administrative Agent, the Issuing Banks and the Lenders and covering such matters as Administrative Agent’s Counsel;
(n) evidence showing the Administrative Agent may reasonably request;
(viii) 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, the officers of the Borrower then authorized to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, Notices of Conversion Finance Parties) as loss payee and Notices of Continuation and to request the issuance of Letters of Creditadditional insured on each Credit Party’s insurance policies;
(ixo) all Fees and other amounts then payable under the certificate or articles of incorporation, 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 as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(x) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (Credit Documents and any state department of taxation, as applicable) of each state in which such Borrowing Base Property is located, if different from the state of formation of such Person;
(xi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of the by-laws of such Person, 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 any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(xii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiii) the Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xiv) [intentionally omitted];
(xv) evidence satisfactory to the Administrative Agent of the payment in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.5, together with all other feesreasonable costs, expenses and reimbursement disbursements (including, without limitation, all fees, charges and disbursements of counsel to the Administrative Agent, and the legal fees and expenses of any local counsel, appraisers, consultants and other advisorsexpenses) amounts then due and payable to incurred by the Administrative Agent or any Lender in connection with the negotiation, preparation, execution and delivery of the Credit Documents and any due diligence or other matters relating to any of the Lenders for which payment has transactions contemplated in any of the Credit Documents have been demandedpaid in full;
(p) evidence of repayment in full of all the Notes and evidence that the Note Indenture, each of the Notes and all guarantees and all Liens (and all other documents, instruments, registrations, filings and similar evidence) relating thereto have been or will, simultaneously with such Advance, have been paid indefeasibly, fully and unconditionally terminated, discharged and released and none of the Credit Parties has any obligation or will be paid at closingliability in relation thereto;
(xviiq) receipt of all Authorizations which the Administrative Agent may require, including, all approvals from the Exchange in relation to the transactions contemplated by this Agreement and/or the other Credit Documents;
(r) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable Borrower has issued 193,237 Common Shares to the Requisite LendersOriginal Lender as duly paid and non assessable shares, as payment of the working capital facility bonus; and
(xviiis) a the Borrower has issued 108,696 Common Shares to the Original Lender as duly executed paid and delivered modification to or an agreement to modify the PM Gallery Loan Agreementnon assessable shares, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).
(b) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (i) have a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(c) The Borrower and 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 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, 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, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability payment of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(d) The Borrower and each other Loan Party shall have provided (i) all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act and (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each Lenderstandby facility break fee.
(e) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests pledged pursuant to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 1 contract
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks and 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 deemed issuance) of a Letter of Credit, 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 and Term Notes executed by the Borrower, payable to each applicable Lender (excluding any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.13. and the Swingline Note executed by the Borrower;
(iii) counterparts of the Security Documents executed (Amended and acknowledged, if applicable) by each of the parties thereto;
(iv) counterparts of the Restated Guaranty executed by each of the Guarantors initially to be a party thereto;
(v) counterparts of the Intercreditor Agreement executed by each of the parties thereto;
(vi) complete and correct copies of the executed Second Lien Documents;
(viiiv) an opinion of counsel to the Borrower and the other Loan Parties addressed to the Administrative Agent, the Issuing Banks and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(viiiv) 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, the officers of the Borrower then authorized to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, Notices of Conversion and Notices of Continuation and to request the issuance of Letters of Credit;
(ixvi) the certificate or articles of incorporation, 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 as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(xvii) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of (A) each state in which such Borrowing Base Person is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect and (B) with respect to each Loan Party that owns or leases an Unencumbered Property, of each state in which any such Unencumbered Property is located, if different from the state of formation of such Person;
(xiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of the by-laws of such Person, 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 any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(xiiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiiix) the Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xivxi) [intentionally omitted]a Compliance Certificate calculated as of the Parent’s fiscal quarter ended March 31, 2018 giving pro forma effect to the making of the Loans, the application of the proceeds thereof and the termination of the 2014 Five-Year Term Loan Agreement and the 2015 Five-Year Term Loan Agreement;
(xvxii) evidence satisfactory to the Administrative Agent of the payment in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/2014 Five-Year Term Loan Agreement and the Existing 2015 Five-Year Term Loan Agreement;
(xvixiii) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.5., together with all other fees, expenses and reimbursement (including, without limitation, all fees, charges and disbursements of counsel to the Administrative Agent, and the fees and expenses of any local counsel, appraisers, consultants and other advisors) amounts then due and payable to the Administrative Agent and any of the Lenders for which payment has been demanded, have been paid or will be paid at closing;
(xvii) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable to the Requisite Lenderspaid; and
(xviiixiv) a duly executed such other documents and delivered modification to instruments as the Administrative Agent, or an agreement to modify any Lender through the PM Gallery Loan AgreementAdministrative Agent, in form and substance may reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).request;
(b) There shall not have occurred or become known to the Administrative Agent or 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 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 have a Material Adverse Effect;
(c) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (i) have a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(cd) The Borrower and 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 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, 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, 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
(de) The Borrower and each other Loan Party shall have provided (i) all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act and (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each Lender.
(e) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests pledged pursuant to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 1 contract
Samples: Credit Agreement (Pennsylvania Real Estate Investment Trust)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks and 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 (or deemed issuance) of a Letter of Credit, are 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 satisfactory to the Administrative Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to each applicable Lender (excluding any Lender that has requested that it not receive a Note) Note and complying with the terms applicable provisions of Section 2.132.8.;
(iii) counterparts of the Security Documents Guaranty executed (and acknowledged, if applicable) by each of the parties theretoParent;
(iv) counterparts an opinion of the Guaranty executed by each general counsel of the Guarantors initially party theretoParent and the other Loan Parties, addressed to the Administrative Agent and the Lenders, addressing the matters set forth in Exhibit F;
(v) counterparts of the Intercreditor Agreement executed by each of the parties thereto;
(vi) complete and correct copies of the executed Second Lien Documents;
(vii) an opinion of Xxxxxx & Bird, LLP, counsel to the Borrower and the other Loan Parties addressed to the Administrative Agent, addressed to the Issuing Banks Administrative Agent and the Lenders Lenders, addressing the enforceability of the Loan Documents and covering such matters as the Administrative Agent may shall reasonably request;
(viiivi) a certificate of incumbency signed by the Secretary secretary or Assistant Secretary (or other individual performing similar functions) assistant secretary of each Loan Party the Parent with respect to each of the officers of such Loan Party the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which such Loan Party the Parent or the Borrower is a party, party and in the case of the Borrower, the officers of the Borrower then authorized to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) ), on behalf of the Borrower Borrower, Notices of Borrowing, Notices of Conversion and Notices of Continuation and to request the issuance of Letters of CreditContinuation;
(ixvii) a certified copy (certified by the secretary or assistant secretary of the Parent) of all necessary action taken by the Parent to authorize the execution, delivery and performance of the Loan Documents to which either the Parent or the Borrower is a party;
(viii) the certificate or articles declaration of incorporation, articles trust of organization, the Parent and the certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) partnership of the Borrower and Borrower, in each other Loan Partycase, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of such Person LEGAL02/38482536v6 (a copy of which was provided in accordance with the Existing Credit Agreement), certified by the secretary or assistant secretary (or other individual performing similar functions) of the Parent and the Borrower as being true, correct and each such Loan Party; provided that, to unmodified in all respects since the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copydate so certified;
(xix) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Parent and the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state State of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which each such Borrowing Base Property Person is located, if different from the state of formation of such Personrequired to be so qualified where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(xix) copies certified by the Secretary secretary or Assistant Secretary assistant secretary (or other individual performing similar functions) of the Parent and the Borrower and each other Loan Party of the by-laws of such Person, if a corporation, the operating agreement, if a Parent and the 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 any agreement of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copyBorrower;
(xiixi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiii) the Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xiv) [intentionally omitted];
(xv) evidence satisfactory to the Administrative Agent of the payment in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.53.6., together with all and any other fees, expenses and reimbursement (including, without limitation, all fees, charges and disbursements of counsel Fees payable to the Administrative Agent, the Titled Agents and the fees Lenders on or prior to the Effective Date;
(xii) a Compliance Certificate calculated as of September 30, 2015, giving pro forma effect to the financing contemplated by this Agreement and expenses the use of the proceeds of the Loans to be funded on the Effective Date;
(xiii) a payoff letter from Keybank National Association, as administrative agent under the Existing Term Loan Agreement, providing for the repayment in full of all loans outstanding thereunder; and
(xiv) such other documents, agreements and instruments as the Administrative Agent on behalf of the Lenders may reasonably request; and
(b) 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 local counselof the Lenders any event, appraiserscondition, consultants situation or status since the date of the information contained in the financial and other advisors) amounts then due business projections, budgets, pro forma data and payable forecasts concerning the Borrower and its Subsidiaries delivered to the Administrative Agent and any of the Lenders for which payment prior to the Agreement Date that has been demanded, have been paid had or will could reasonably be paid at closingexpected to result in a Material Adverse Effect;
(xvii) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable to the Requisite Lenders; and
(xviii) a duly executed and delivered modification to or an agreement to modify the PM Gallery Loan Agreement, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).
(bii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (i1) have 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;
(ciii) The Borrower and the other Loan Parties 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 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, LEGAL02/38482536v6 making or giving of which, or the failure to make, give or receive which, which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) 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; and
(div) 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 (i) all information requested adversely affect the transactions contemplated by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act and (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each LenderLoan Documents.
(e) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests pledged pursuant to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 1 contract
Samples: Term Loan Agreement (Corporate Office Properties, L.P.)
Initial Conditions Precedent. (a) The effectiveness of this the amendment and restatement of the Existing Credit Agreement and contemplated hereby, as well as the obligation of the Administrative Agent, the Issuing Banks and 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 deemed issuance) of a Letter of Credit, are subject to the satisfaction or waiver of the following conditions precedent:precedent and to the conditions precedent set forth in section 5.1.
(ab) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts a counterpart of this Agreement executed by the Borrower and each of the parties heretoLenders;
(ii) the Revolving Notes and Term Notes executed by the Borrower, payable to each applicable Lender (excluding any Lender that has requested that it not receive a Note) of the Lenders and complying with the terms of Section 2.132.9., and the Swingline Note executed by the Borrower, payable to the Swingline Lender;
(iii) counterparts of the Security Documents Guaranty executed (and acknowledged, if applicable) by each of the parties theretoGuarantor;
(iv) counterparts of the Guaranty executed by each of the Guarantors initially party thereto;
(v) counterparts of the Intercreditor Pledge Agreement executed by each of the parties theretoBorrower and each other Loan Party owning any equity interest in any other Loan Party. In addition, the Agent shall have received each of the following: (i) all certificates representing all (or in the case of any Foreign Subsidiary, 65%) of the issued and outstanding capital stock or other equity interests of each of such other Loan Parties and (ii) stock powers duly endorsed in blank relating to all such certificates;
(v) the Assignment of Acquisition Documents executed by each of the Borrower and the other Loan Parties;
(vi) complete Trademark Security Agreements executed by each of Serologicals Royalty Company, Biovest, Inc., Serocor Incorporated and correct copies of the executed Second Lien DocumentsIntergen Discovery Products, LLC;
(vii) an opinion Patent Security Agreements executed by each of counsel to Serologicals Royalty Company, Biovest, Inc., Serocor Incorporated and Intergen Discovery Products, LLC;
(viii) the Security Agreement executed by each of the Borrower and the other Loan Parties addressed to the Administrative Agent, the Issuing Banks and the Lenders and covering such matters as the Administrative Agent may reasonably request(excluding Foreign Subsidiaries);
(viiiix) favorable UCC, tax and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions and under all legal and appropriate trade names indicating that there are no prior Liens on any of the Collateral of such Specified Loan Parties other than Permitted Liens or Liens to be terminated prior to the Closing Date;
(x) an opinion of King & Spalding, counsel to the Loan Parties, substantially in the form of Exhibit O;
(xi) the articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of the jurisdiction of formation of such Loan Party;
(xii) a certificate of good standing (or other certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the jurisdiction of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which each such Loan Party is required to be so qualified;
(xiii) 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, the officers of the Borrower then authorized to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, Notices of Conversion and Conversion, Notices of Continuation Continuation, Notices of Swingline Borrowing and to request requests for the issuance of Letters of Credit;
(ix) the certificate or articles of incorporation, 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 as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(x) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Borrowing Base Property is located, if different from the state of formation of such Person;
(xixiv) copies certified by the Secretary or Assistant Secretary of each Loan Party (or other individual performing similar functions) of the Borrower and each other Loan Party of (i) the by-laws of such PersonLoan 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 any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
and (xiiii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiiixv) the Disbursement Instruction Agreement a certificate executed by the Borrower effective as chief executive officer or chief financial officer of the Agreement Date;
(xiv) [intentionally omitted];
(xv) evidence satisfactory to the Administrative Agent of the payment in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.5Borrower, together with all other fees, expenses and reimbursement (including, without limitation, all fees, charges and disbursements of counsel to the Administrative Agent, and the fees and expenses of any local counsel, appraisers, consultants and other advisors) amounts then due and payable to the Administrative Agent and any of the Lenders for which payment has been demanded, have been paid or will be paid at closing;
(xvii) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable to the Requisite Lenders; and
(xviii) a duly executed and delivered modification to or an agreement to modify the PM Gallery Loan Agreement, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).
(b) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to stating that: (i) have a Material Adverse Effect on such date, and after giving effect to the transactions contemplated hereby, no Default or Event of Default has occurred and is continuing and (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially the representations and adversely affect the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(c) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have warranties 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 or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or deemed made 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, 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, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party in the Credit Documents are true and correct in all material respects on and as of such date with the same effect as though made on and as of such date;
(xvi) certificates of insurance evidencing the existence of all insurance required to fulfill its obligations be maintained by each Loan Party pursuant to the Credit Documents, together with loss payable clauses as required by such Credit Documents;
(xvii) the Fees, if any, then due under Section 3.6., and evidence that all accrued and unpaid interest and fees owing under the Existing Credit Agreement have been paid;
(xviii) audited consolidated balance sheets and statements of operations and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal years ended December 31, 2000 and December 31, 2001 (collectively, the "Historical Financial Statements");
(xix) a Security Deed encumbering the Kankakee Property, the form of such Security Deed to be modified as appropriate to conform to the Applicable Laws of the jurisdiction in which such property is located, together with financing statements relating to the security interest granted thereunder;
(xx) An opinion of counsel admitted to practice law in the State of Illinois and acceptable to the Agent, addressed to the Agent and each Lender covering such legal matters with respect to such Security Deed as the Agent may reasonably request;
(xxi) if available to any Loan Documents Party, a copy of each of the following:
(1) a copy of the most recent owner's policy of title insurance relating to the Kankakee Property showing the identity of the fee titleholder thereto;
(2) the recorded deed or other instrument pursuant to which it is a partythe Loan Party that owns the Kankakee Property obtained title; and
(d) The Borrower and each other Loan Party shall have provided (i) all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act and (ii3) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each Lender.
(e) With respect to any personal property owned by a Borrower environmental studies or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests pledged pursuant to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements assessments performed with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral AgreementKankakee Property; and
(vxxii) UCC-1 Financing Statements filed (such other documents, instruments and agreements as the Agent or to be filed concurrently with any Lender through the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security DocumentAgent may reasonably request.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 1 contract
Samples: Credit Agreement (Serologicals Corp)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks Agent and 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 deemed issuance) of a Letter of Credit, hereunder 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 and Term Notes executed by the Borrower, payable to each applicable Lender (excluding any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.13;
(iii) counterparts of the Security Documents executed (and acknowledged, if applicable) by each of the parties thereto;
(iv) counterparts of the Guaranty executed by each of the Guarantors initially party thereto;
(v) counterparts of the Intercreditor Agreement executed by each of the parties thereto;
(vi) complete and correct copies of the executed Second First Lien Documents;
(vii) an opinion of counsel to the Borrower and the other Loan Parties addressed to the Administrative Agent, the Issuing Banks Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(viii) 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, the officers of the Borrower then authorized to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation and to request the issuance of Letters of CreditContinuation;
(ix) the certificate or articles of incorporation, 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 as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(x) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Borrowing Base Property is located, if different from the state of formation of such Person;
(xi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of the by-laws of such Person, 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 any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(xii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiii) the Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xiv) [intentionally omitted];
(xv) evidence satisfactory to the Administrative Agent of the payment or satisfaction in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.5, together with all other fees, expenses and reimbursement (including, without limitation, all fees, charges and disbursements of counsel to the Administrative Agent, and the fees and expenses of any local counsel, appraisers, consultants and other advisors) amounts then due and payable to the Administrative Agent and any of the Lenders for which payment has been demanded, have been paid or will be paid at closing;
(xvii) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable to the Requisite Lenders; and
and (xviii) a duly executed and delivered modification to or an agreement to modify the PM Gallery Loan Agreement, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).
(b) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (i) have a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(c) The Borrower and 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 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, 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, 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
(d) The Borrower and each other Loan Party shall have provided (i) all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act and (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each Lender.
(e) With respect to (x) any original stock certificates or other certificates evidencing the certificated Equity Interests pledged pursuant to the Security Documents, the Borrower shall have delivered to the First Lien Administrative Agent, subject to the terms of the Intercreditor Agreement, each such certificate together with an undated stock power for such certificate duly executed in blank by the registered owner thereof, (y) any original promissory note pledged pursuant to the Security Documents, the Borrower shall have delivered to the First Lien Administrative Agent, subject to the terms of the Intercreditor Agreement, each such promissory note together with an undated allonge for such promissory note duly executed in blank by the holder thereof, and (z) any other personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests pledged pursuant to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof[intentionally omitted;]
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 1 contract
Samples: Second Lien Credit Agreement (Pennsylvania Real Estate Investment Trust)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks and 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 (or deemed issuance) of a Letter of Credit, are 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 satisfactory to the Administrative Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to each applicable Lender (excluding any Lender that has requested that it not receive a Note) Note and complying with the terms applicable provisions of Section 2.132.8.;
(iii) counterparts of the Security Documents Guaranty executed (and acknowledged, if applicable) by each of the parties thereto;Parent; LEGAL02/36006473v7
(iv) counterparts an opinion of the Guaranty executed by each general counsel of the Guarantors initially party theretoParent and the other Loan Parties, addressed to the Administrative Agent and the Lenders, addressing the matters set forth in Exhibit F;
(v) counterparts of the Intercreditor Agreement executed by each of the parties thereto;
(vi) complete and correct copies of the executed Second Lien Documents;
(vii) an opinion of Xxxxxx & Bird, LLP, counsel to the Borrower and the other Loan Parties addressed to the Administrative Agent, addressed to the Issuing Banks Administrative Agent and the Lenders Lenders, addressing the enforceability of the Loan Documents and covering such matters as the Administrative Agent may shall reasonably request;
(viiivi) a certificate of incumbency signed by the Secretary secretary or Assistant Secretary (or other individual performing similar functions) assistant secretary of each Loan Party the Parent with respect to each of the officers of such Loan Party the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which such Loan Party the Parent or the Borrower is a party, party and in the case of the Borrower, the officers of the Borrower then authorized to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) ), on behalf of the Borrower Borrower, Notices of Borrowing, Notices of Conversion and Notices of Continuation and to request the issuance of Letters of CreditContinuation;
(ixvii) a certified copy (certified by the secretary or assistant secretary of the Parent) of all necessary action taken by the Parent to authorize the execution, delivery and performance of the Loan Documents to which either the Parent or the Borrower is a party;
(viii) the certificate or articles declaration of incorporation, articles trust of organization, the Parent and the certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) partnership of the Borrower and Borrower, in each other Loan Partycase, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of such Person (a copy of which was provided in accordance with the Existing Credit Agreement), certified by the secretary or assistant secretary (or other individual performing similar functions) of the Parent and the Borrower as being true, correct and each such Loan Party; provided that, to unmodified in all respects since the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copydate so certified;
(xix) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Parent and the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state State of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which each such Borrowing Base Property Person is located, if different from the state of formation of such Personrequired to be so qualified where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(xix) copies certified by the Secretary secretary or Assistant Secretary assistant secretary (or other individual performing similar functions) of the Parent and the Borrower and each other Loan Party of the by-laws of such Person, if a corporation, the operating agreement, if a Parent and the 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 any agreement of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copyBorrower;
(xiixi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiii) the Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xiv) [intentionally omitted];
(xv) evidence satisfactory to the Administrative Agent of the payment in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.53.6., together with all and any other fees, expenses and reimbursement (including, without limitation, all fees, charges and disbursements of counsel Fees payable to the Administrative Agent, the Titled Agents and the fees Lenders on or prior to the Effective Date;
(xii) a Compliance Certificate calculated as of September 30, 2015, giving pro forma effect to the financing contemplated by this Agreement and expenses the use of the proceeds of the Loans to be funded on the Effective Date;
(xiii) a payoff letter from Keybank National Association, as administrative agent under the Existing Term Loan Agreement, providing for the repayment in full of all loans outstanding thereunder; and
(xiv) such other documents, agreements and instruments as the Administrative Agent on behalf of the Lenders may reasonably request; and LEGAL02/36006473v7
(b) 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 local counselof the Lenders any event, appraiserscondition, consultants situation or status since the date of the information contained in the financial and other advisors) amounts then due business projections, budgets, pro forma data and payable forecasts concerning the Borrower and its Subsidiaries delivered to the Administrative Agent and any of the Lenders for which payment prior to the Agreement Date that has been demanded, have been paid had or will could reasonably be paid at closingexpected to result in a Material Adverse Effect;
(xvii) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable to the Requisite Lenders; and
(xviii) a duly executed and delivered modification to or an agreement to modify the PM Gallery Loan Agreement, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).
(bii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (i1) have 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;
(ciii) The Borrower and the other Loan Parties 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 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, or the failure to make, give or receive which, which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) 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; and
(div) 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 (i) all information requested adversely affect the transactions contemplated by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act and (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each LenderLoan Documents.
(e) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests pledged pursuant to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 1 contract
Samples: Term Loan Agreement (Corporate Office Properties, L.P.)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks and 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 deemed issuance) of a Letter of Credit, are 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 and Term Notes executed by the Borrower, payable to each applicable Lender (excluding any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.132.12(a) and the Swingline Note executed by the Borrower;
(iii) counterparts of the Security Documents executed (and acknowledged, if applicable) by each of the parties thereto;
(iv) counterparts of the Guaranty executed by each of the Guarantors initially to be a party thereto;
(v) counterparts of the Intercreditor Agreement executed by each of the parties thereto;
(vi) complete and correct copies of the executed Second Lien Documents;
(viiiv) an opinion of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel to the Parent, the Borrower and the other Loan Parties Parties, addressed to the Administrative Agent, the Issuing Banks Agent and the Lenders and covering such the matters as the Administrative Agent may reasonably requestset forth in Exhibit L;
(viiiv) 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 as of a recent date by the Secretary of State of the state of formation of such Loan Party (or certification from the Secretary of the applicable Loan Party that there have been no changes thereto since the Original Closing Date);
(vi) 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;
(vii) 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, the officers of the Borrower then authorized to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation and to request the issuance of Letters of CreditContinuation;
(ix) the certificate or articles of incorporation, 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 as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(x) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Borrowing Base Property is located, if different from the state of formation of such Person;
(xiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of (A) the by-laws of such PersonLoan 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 any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
entity and (xiiB) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiiiix) a Maximum Loan Availability Certificate calculated as of the Effective Date;
(x) Appraisals of all Secured Pool Properties, together with all other due diligence reasonably requested by the Administrative Agent with respect to each Secured Pool Property, including, to the extent requested by the Administrative Agent, the items set forth on Schedule 6.1 hereto;
(xi) a Compliance Certificate calculated on a pro forma basis for the Parent’s fiscal quarter ending March 31, 2015;
(xii) a Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xiii) evidence that all accrued and unpaid interest, fees and expenses then due and owing by the Loan Parties under the Existing Credit Agreement as of the Effective Date shall have been paid in full;
(xiv) [intentionally omitted]copies of all Specified Derivatives Contracts in existence on the Agreement Date;
(xv) evidence satisfactory to the Administrative Agent copies of the payment in full form of or satisfaction Tenant Lease to be used for each Property from the Effective Date until the Revolving Termination Date and each Tenant Lease entered into as of all amounts due the Agreement Date with respect to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreementsuch Property;
(xvi) evidence satisfactory to the Administrative Agent that the Fees Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement (includingamounts due and payable to the Administrative Agent, the Arrangers and any of the Lenders pursuant to the Fee Letters or pursuant to the terms of this Agreement, including without limitation, all fees, charges the fees and disbursements expenses of counsel to the Administrative Agent, and the fees and expenses of any local counsel, appraisers, consultants and other advisors) amounts then due and payable to the Administrative Agent and any of the Lenders for which payment has been demanded, have been paid or will be paid at closingpaid;
(xvii) insurance certificates, or other evidence, providing that the Effective Date Annual Business Planinsurance coverage required under Section 8.5 (including, which without limitation, both property and liability insurance) is in full force and effect and stating that the coverage shall not be in form and substance reasonably acceptable cancelable or materially changed without ten (10) days prior written notice to the Requisite Administrative Agent of any cancellation for nonpayment of premiums, and not less than thirty (30) days prior written notice to the Administrative Agent of any other cancellation or any modification (including a reduction in coverage), together with appropriate evidence that the Administrative Agent, for its benefit and the benefit of the Lenders, the Issuing Banks, and the Specified Derivatives Providers is named as a mortgagee lender’s loss payee and additional insured, as appropriate, on all insurance policies that the Borrower, any Loan Party or any other Subsidiary actually maintains with respect to any Property and improvements on such Property; and
(xviii) a duly executed such other documents, agreements and delivered modification to instruments as the Administrative Agent, or an agreement to modify any Lender through the PM Gallery Loan AgreementAdministrative Agent, in form and substance may reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).request;
(b) No 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 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 which could reasonably be expected to (iA) have result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect affect, the ability of the Parent or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(cd) The Borrower and the Parent, the Borrower, the other Loan Parties and 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 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, 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, 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;
(de) The the Borrower and each other Loan Party shall have provided (i) all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act and (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each Lender.
(e) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests pledged pursuant to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral AgreementAct; and
(vf) UCC-1 Financing Statements filed (there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to be filed concurrently with materially and adversely affect the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized transactions contemplated by the applicable Security DocumentLoan Documents.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 1 contract
Samples: Credit Agreement (Tier Reit Inc)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks and 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 (or deemed issuance) of a Letter of Credit, are initial Term 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 Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to each applicable Lender (excluding any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.132.8.;
(iii) counterparts of the Security Documents executed (and acknowledged, if applicable) by each of the parties thereto;
(iv) counterparts of the The Guaranty executed by each of the Guarantors initially party theretoOperating Partnerships;
(iv) An opinion of counsel to the Loan Parties, addressed to the Agent, and the Lenders, addressing the matters set forth in Exhibit E;
(v) counterparts The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of the Intercreditor Agreement executed Borrower and each other Loan Party certified as of a recent date by each the Secretary of State of the parties theretostate of formation of such Loan Party;
(vi) complete and correct copies 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 executed Second Lien Documentsstate of formation of such Loan Party;
(vii) an opinion of counsel to the Borrower and the other Loan Parties addressed to the Administrative Agent, the Issuing Banks and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(viii) 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 and, in the case of the Borrower, the officers of the Borrower then authorized to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, Notices of Conversion Continuation and Notices of Continuation and to request the issuance of Letters of CreditConversion;
(ixviii) the certificate or articles of incorporation, 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 as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(x) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Borrowing Base Property is located, if different from the state of formation of such Person;
(xi) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of (i) the by-laws of such PersonLoan 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 of such Loan Party in the case of any other form of legal entity; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
entity and (xiiii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiiiix) the Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xiv) [intentionally omitted];
(xv) evidence satisfactory to the Administrative Agent of the payment in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the The Fees then due and payable under Section 3.5, together with all other fees, expenses and reimbursement (including, without limitation, all fees, charges and disbursements of counsel to the Administrative Agent3.6., and the fees and expenses of any local counsel, appraisers, consultants and other advisors) amounts then due and Fees payable to the Administrative Agent and the Lenders on or prior to the Effective Date;
(x) A Compliance Certificate calculated as of September 30, 2005 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date), and calculations demonstrating that all Indebtedness proposed to be incurred by the Borrower on the Effective Date is permitted under each of the Senior Note Indentures and that no default under any of the Senior Note Indentures will exist as of such date;
(xi) A copy of each of the documents, instruments and agreements evidencing any of the Indebtedness described on Schedule 6.1.(g), in each case certified as true, correct and complete by the chief executive officer or chief financial officer of the Borrower, but only if any such documents, instruments and agreements are not otherwise publicly available;
(xii) A Notice of Borrowing for the initial Term Loans; and
(xiii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders for which payment any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets and pro forma data concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has been demanded, have been paid had or will could reasonably be paid at closingexpected to result in a Material Adverse Effect;
(xvii) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable to the Requisite Lenders; and
(xviii) a duly executed and delivered modification to or an agreement to modify the PM Gallery Loan Agreement, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).
(bii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (i1) have 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;
(ciii) The Borrower and the other Loan Parties 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 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, or the failure to make, give or receive which, which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) 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; and
(div) 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 (i) all information requested adversely affect the transactions contemplated by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act and (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each LenderLoan Documents.
(e) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests pledged pursuant to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 1 contract
Samples: Term Loan Agreement (Heritage Property Investment Trust Inc)
