Documentary Conditions Precedent. The obligation of the Bank to make the Revolving Credit Loan constituting the initial borrowing is subject to the condition precedent that the Bank shall have received on or before the date of such Revolving Credit Loan each of the following, in form and substance satisfactory to the Bank and its counsel: (a) the Note duly executed by the Borrower; (b) the Guaranty duly executed by each Guarantor; (c) a certificate of the Secretary or Assistant Secretary of the Borrower and each Guarantor, dated the Closing Date, attesting to all corporate action taken by the Borrower and each Guarantor, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the Facility Documents to which it is a party and each other document to be delivered pursuant to this Agreement together with certified copies of the certificate or articles of incorporation and the by laws and any amendments thereto of the Borrower and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified , revoked or rescinded as of the date of the initial borrowing of the Loans; (d) a certificate of the Secretary or Assistant Secretary of the Borrower and Guarantor, dated the Closing Date, certifying the names and true signatures of the officers of the Borrower and Guarantor authorized to sign the Facility Documents to which it is a party and the other documents to be delivered by the Borrower and Guarantor under this Agreement; (e) a certificate of a duly authorized officer of the Borrower and Guarantor, dated the Closing Date, stating that the representations and warranties in Article 4 are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default; (f) a "long form" certificate of good standing of the Borrower and Guarantor; (g) the Security Agreements duly executed by the Borrower and Guarantor together with (a)
Appears in 1 contract
Documentary Conditions Precedent. The obligation obligations of the Bank Banks to make the Revolving Credit Loan constituting Loans (including, without limitation, issuing Letters of Credit) on or after the initial borrowing is date hereof are subject to the condition conditions precedent that the that:
(a) each Bank shall have received on or before the date of such Revolving Credit Loan hereof each of the following, in form and substance reasonably satisfactory to the such Bank and its counsel:
(ai) this Agreement and the Note Revolving Credit Notes duly executed by the Borrower;
(b) the Guaranty duly executed by each Guarantor;
(cii) a certificate of the Secretary or Assistant Secretary of the Borrower and each Guarantorof the Guarantors, dated the Closing Date, attesting to all corporate action taken by the Borrower and each Guarantorsuch entity, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the Facility Documents to which it is a party and each other document to be delivered pursuant to this Agreement Agreement, together with certified copies of the certificate or articles of incorporation and the by by-laws and any amendments thereto of the Borrower and Guarantoreach of the Guarantors; each and, such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified modified, revoked or rescinded as of the date of the initial borrowing of the Loanssuch certificate;
(diii) a certificate of the Secretary or Assistant Secretary of the Borrower and Guarantoreach of the Guarantors, dated the Closing Date, certifying the names and true signatures of the officers of the Borrower and Guarantor such entity authorized to sign the Facility Documents to which it is a party and the other documents to be delivered by the Borrower and Guarantor such entity under this Agreement;
(eiv) a certificate of a duly authorized officer of the Borrower and GuarantorBorrower, dated the Closing Date, stating that the representations and warranties in Article 4 6 are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default;
(fv) Guarantees, duly executed by each Guarantor;
(vi) a "long form" certificate favorable opinion of counsel for the Borrower and Guarantors, dated the Closing Date, in substantially the form of Exhibit E;
(vii) satisfactory evidence that the Borrower and the Guarantors are duly organized, validly existing and in good standing under the laws of their respective jurisdictions of incorporation and each other jurisdiction where qualification is necessary;
(viii) audited consolidated and consolidating balance sheets of the Borrower and Guarantorits Subsidiaries as at December 30, 1995, and consolidated and consolidating income statements and statements of cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, all prepared in accordance with GAAP, together with the unqualified opinion thereon of BDO Xxxxxxx, independent certified public accountants, and unaudited consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as at September 28, 1996, together with income statements and statements of cash flows of the Borrower and its Subsidiaries for the fiscal quarter ended September 28, 1996 and for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, each prepared by or under the supervision of the chief financial officer of the Borrower in accordance with GAAP;
(gix) such other documents, instruments, approvals, opinions and evidence as the Banks may reasonably require;
(b) the Security Agreements duly executed Borrower shall have paid or caused to be paid to the Banks in full the Up Front Fee and all other fees required to be paid hereunder or in connection herewith, and to the Agent in full all accrued fees and expenses of the Agent in connection with the preparation, execution and delivery of this Agreement and the other Facility Documents and the consummation of the transactions contemplated thereby; and the Borrower shall have paid or caused to be paid to the "Banks" and the "Agent" under the "Credit Agreement" all outstanding "Revolving Credit Loans" thereunder and all accrued interest thereon, and all accrued commissions and fees under such Credit Agreement;
(c) the Borrower and the Guarantors shall have obtained all consents, permits and approvals required in connection with the execution, delivery and performance by the Borrower and the Guarantors of their obligations hereunder and such consents, permits and approvals shall continue in full force and effect;
(d) all legal matters in connection with this financing shall be reasonably satisfactory to the Banks and their counsel; and
(e) the Borrower shall provide reasonably satisfactory evidence that neither it nor any Guarantor together is in default with (a)respect to any contractual obligations to which it is a party, the effect of which could reasonably be expected to be material and adverse to the Borrower or any Guarantor, or to the ability of the Borrower or any Guarantor to perform its obligations hereunder or under the other Facility Documents.
Appears in 1 contract
Documentary Conditions Precedent. The obligation obligations of the Bank Banks to make the Revolving Credit Loan Loans constituting the initial borrowing is Borrowing are subject to the condition conditions precedent that that:
(a) the Bank Agent shall have received on or before the date of such Revolving Credit Loan Loans each of the following, in form and substance reasonably satisfactory to the Bank Agent and its counsel:
(ai) the Note Notes duly executed by the Borrower;
(bii) the Guaranty duly executed by each Guarantorreturn, from the respective beneficiaries thereof, of all letters of credit, if any, issued under the Sid Tool Credit Agreement that are to be returned to the Issuing Bank (as defined in the Sid Tool Credit Agreement) on or before the date of the initial Borrowing;
(ciii) a certificate of the Secretary or Assistant Secretary of the Borrower and of each GuarantorSubsidiary of the Borrower, dated the Closing Effective Date, attesting to all corporate action taken by the Borrower and each Guarantorsuch Person, including resolutions of its respective Board of Directors authorizing authorizing, as applicable, the execution, delivery and performance of the Facility Documents to which it is a party and each other document to be delivered pursuant to this Agreement Agreement, together with certified copies of the certificate or articles of incorporation and the by by-laws and any amendments thereto of the Borrower and Guarantoreach Subsidiary of the Borrower; each and, such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified modified, revoked or rescinded as of the date of the initial borrowing of the Loanssuch certificate;
(div) a certificate of the Secretary or Assistant Secretary of the Borrower and Guarantorof each Subsidiary of the Borrower, dated the Closing Effective Date, certifying the names and true signatures of the officers of the Borrower and Guarantor such entity authorized to sign the Facility Documents to which it is a party and the other documents to be delivered by the Borrower and Guarantor such entity under this Agreement;
(ev) a certificate of a duly authorized officer of the Borrower and Guarantor, each Subsidiary of the Borrower dated the Closing Effective Date, stating that (i) the representations and warranties in Article 4 6 are true and correct on such date as though made on and as of such date and that date, (ii) no event has occurred and is continuing which constitutes a Default or Event of DefaultDefault (as such terms are defined in the Sid Tool Credit Agreement) has occurred or is continuing under the Sid Tool Credit Agreement and (iii) no Default or Event of Default has occurred or is continuing or would occur as a result of the making of any Loan or the issuance of any Letter of Credit;
(vi) favorable opinions of counsel for the Borrower and each Subsidiary of the Borrower, dated the Effective Date, in substantially the form of Exhibit F;
(vii) evidence that the Borrower and each of the Subsidiaries of the Borrower is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation;
(viii) an audited consolidated and consolidating balance sheet of the Borrower and its Consolidated Subsidiaries as at August 31, 1996, and a consolidated income statement and statement of cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, all prepared in accordance with GAAP together with unaudited interim consolidated and consolidating financial statements of the Borrower and its Consolidated Subsidiaries as of and for the period ending February 28, 1997;
(ix) a Subsidiary Guarantee duly executed by each Subsidiary of the Borrower;
(x) a copy of the Final Prospectus relating to the issuance of the Class A Common Stock of the Borrower;
(xi) such other documents, financial statements, instruments, approvals, opinions and evidence as the Agent may reasonably require.
(b) the Borrower shall have paid or caused to be paid all fees required to be paid hereunder or in connection herewith and all accrued fees and expenses of the Agent, the Issuing Bank and each of the Banks (subject to the limitations set forth herein) in connection with the preparation, execution and delivery of this Agreement, and the other Facility Documents and the consummation of the transactions contemplated thereby;
(c) all amounts due and payable under the Sid Tool Credit Agreement as of the Effective Date and the amount of accrued but unpaid facility fees pursuant to Section 4.04 of the Sid Tool Credit Agreement shall have been paid in full;
(d) the Borrower and each of the Subsidiaries of the Borrower shall have obtained all consents, permits and approvals required in connection with the execution, delivery and performance by the Borrower and such Subsidiaries of their obligations hereunder and such consents, permits and approvals shall continue in full force and effect;
(e) all legal matters in connection with this financing shall be reasonably satisfactory to the Issuing Bank, the Banks and their respective counsel;
(f) a "long form" certificate of good standing no material adverse change in the business, condition (financial or otherwise), operations, performance or properties of the Borrower and Guarantorits Subsidiaries taken as a whole, shall have occurred since August 31, 1996;
(g) there shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that could (i) have a material adverse effect on the Security Agreements duly executed by business, condition (financial or otherwise), operations, performance, properties or prospects of the Borrower and Guarantor together its Subsidiaries, taken as a whole, or (ii) impair the Borrower or any such Subsidiary's ability to perform satisfactorily under the Facility Documents to which it is a party;
(h) the Agent, the Issuing Bank and the Banks shall have received reasonably satisfactory evidence that (i) neither the Borrower nor any of its Subsidiaries is in default with respect to any contractual obligations to which it is a party, the effect of which may be material and adverse to the Borrower and the Subsidiaries of the Borrower, taken as a whole, or to the ability of the Borrower or any such Subsidiary to perform its respective obligations hereunder or under the other Facility Documents, (a)ii) no Default or Event of Default (as such terms are defined in the Sid Tool Credit Agreement) has occurred or is continuing under the Sid Tool Credit Agreement and (iii) no Default or Event of Default has occurred or is continuing or would occur as a result of the making of any Loan or the issuance of any Letter of Credit; and
(i) all conditions precedent with respect to the effectiveness of the Second Amended and Restated Credit Agreement shall have been satisfied in full.
Appears in 1 contract
Documentary Conditions Precedent. The obligation This Agreement shall become effective upon its execution and delivery by all of the Bank parties hereto, and the Lenders shall be obliged to make their respective advances pursuant to Section 2.1 hereof when the Revolving Credit Loan constituting the initial borrowing is subject to the condition precedent that the Bank Lenders shall have received on or before the date of such Revolving Credit Loan each of the following, following in form and substance satisfactory to the Bank and its counselthem:
(a) the Note Notes, the Security Agreement, the Mortgage, the Guaranties and the Servicing Agreement, duly executed by the appropriate parties thereto;
(b) a copy of the Resolutions, accompanied by a duly certified statement to the Lenders by the Borrower's general partner, to the effect that the Resolutions have been duly adopted and are in full force and effect;
(c) certificates as to the incumbency and signature of each of the persons authorized to execute and deliver the Loan Documents on behalf of the Borrower and as to the Borrower's partnership agreement;
(d) one or more financing statements, as requested by the Lenders, duly executed by the Borrower;
(b) the Guaranty duly executed by each Guarantor;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower and each Guarantor, dated the Closing Date, attesting to all corporate action taken by the Borrower and each Guarantor, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the Facility Documents to which it is a party and each other document to be delivered pursuant to this Agreement together with certified copies of the certificate or articles of incorporation and the by laws and any amendments thereto of the Borrower and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified , revoked or rescinded as of the date of the initial borrowing of the Loans;
(d) a certificate of the Secretary or Assistant Secretary of the Borrower and Guarantor, dated the Closing Date, certifying the names and true signatures of the officers of the Borrower and Guarantor authorized to sign the Facility Documents to which it is a party and the other documents to be delivered by the Borrower and Guarantor under this Agreement;
(e) a certificate signed copy of a duly authorized officer favorable opinion of counsel for the Borrower Borrower, Bayfront and Guarantor, dated Concorde Gaming Corporation as to such matters incident to the Closing Date, stating that transaction herein contemplated as the representations and warranties in Article 4 are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of DefaultLenders may reasonably require;
(f) a "long form" certificate of good standing of proof satisfactory to the Borrower Lenders that the liens granted under the Security Agreement and Guarantorthe Mortgage constitute first priority, perfected liens upon the Vessel and the Collateral;
(g) copies of lien searches dated no more than 10 days prior to the Security Agreements Closing Date demonstrating that no financing statements or other statements or notices of Liens have been filed with or any state or municipal offices for the purpose of validating or perfecting any Lien covering any portion of the Vessel, the Equipment, or any real or personal property of the Borrower which may be used or useful in connection with the Gaming Enterprise, other than Liens permitted by Section 6.7;
(h) evidence of the insurance coverage required by Section 6.2 hereof;
(i) evidence of payment of all placement fees incurred in connection with the Loan and all of the Lenders' and Servicer's costs and expenses through the Closing Date reimbursable by the Borrower pursuant to Section 8.3;
(j) the Bayfront Agreement, duly executed by Bayfront;
(k) a copy of the resolutions adopted by Bayfront, accompanied by a duly certified statement to the Lenders by a general partner of Bayfront, to the effect that such resolutions have been duly adopted and are in full force and effect;
(l) certificates as to the incumbency and signature of each of the persons authorized to execute and deliver the Bayfront Agreement and any other instrument to which Bayfront may be a party on behalf of Bayfront, and as to Bayfront's partnership agreement;
(m) evidence satisfactory to the Servicer that (i) the Vessel shall have been completed in accordance with the Plans; (ii) an official number shall have been assigned to the Vessel; (iii) a General Index or Abstract of Title shall have been issued showing the Borrower as owner and Guarantor together only BNC Financial Corporation as holder of a first preferred ship mortgage; (iv) BNC Financial Corporation shall have delivered for recording an instrument terminating the lien of its first preferred ship mortgage; (v) the Mortgage shall have been delivered for recording; and (vi) the U.S. Coast Guard shall have issued a Certificate of Documentation permitting the Vessel to be operated in the coastwise registry;
(n) a pay-off letter from BNC Financial Corporation ("BNC"), specifying the amount required to pay the Borrower's obligations to BNC in full;
(o) a statement, acceptable to the Servicer, incorporating and setting forth all Project Costs incurred or to be incurred in constructing and furnishing the Facilities in accordance with the Plans sworn to by the Borrower to be a true, complete and accurate account of all Project Costs actually incurred and a reasonably accurate estimate of all Project Costs to be incurred in the future (athe "Total Project Cost Statement");
(p) a statement by the Borrower that all building permits and such other licenses and permits as may be required to operate the Vessel have been obtained, or will be obtained as and when required, with copies attached of any such licenses and permits as have then been obtained; and
(q) such other documents, instruments, approvals, opinions or items as the Servicer may reasonably request.
Appears in 1 contract
Documentary Conditions Precedent. The obligation of the Bank to make the Revolving Credit Loan constituting the initial borrowing Loans is subject to the condition conditions precedent that the Bank shall have received on or before the date of such Revolving Credit Loan Borrowing each of the following, in form and substance satisfactory to the Bank and its counsel:
(a) the Note Notes duly executed by the BorrowerBorrowers;
(b) the Guaranty Security Agreement duly executed by each Guarantorthe Borrowers, together with (i) acknowledgment copies of the financing statements (UCC-1) duly filed under the Uniform Commercial Code of all jurisdictions necessary or, in the opinion of the Bank, desirable to perfect the security interest created by the Security Agreement; (ii) certified copies of requests for information (Form UCC-11) identifying all of the financing statements on file with respect to the Borrowers in all jurisdictions referred to under (i), including the financing statements filed by the Bank against the Borrowers, indicating that no party claims an interest in any of the Collateral (as defined in the Security Agreement);
(c) a certificate of the Secretary or Assistant Secretary of the Borrower and each GuarantorBorrower, dated the Closing Date, attesting to all corporate action taken by the Borrower and each Guarantorsuch Borrower, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the Facility Documents to which it is a party and each other document to be delivered pursuant to this Agreement together with certified and certifying copies of the certificate or articles Certificate of incorporation Incorporation and the by by-laws and any amendments thereto of the Borrower and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified , revoked or rescinded as of the date of the initial borrowing of the LoansBorrower;
(d) a certificate of the Secretary or Assistant Secretary of the Borrower and Guarantoreach Borrower, dated the Closing Date, certifying the names and true signatures of the officers of the such Borrower and Guarantor authorized to sign the Facility Documents to which it is a party and the other documents to be delivered by the such Borrower and Guarantor under this Agreement;
(e) a certificate of a duly authorized officer of the Borrower and Guarantoreach Borrower, dated the Closing Date, stating that the representations and warranties in Article 4 5 of this Agreement, and Article 2 of the Security Agreement, and in each other Facility Document, are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default;
(f) a "long form" certificate of good standing of an Environmental Indemnification Agreement duly signed by the Borrower Borrowers in form and Guarantorsubstance satisfactory to the Bank;
(g) a certificate of good standing for each Borrower from the Security Agreements duly executed Secretary of the State of the state in which such Borrower is incorporated and each other jurisdiction in which such Borrower is qualified to do business;
(h) payment by the Borrowers to the Bank of the facility fees as required by Section 2.12(b), and all other expenses and fees incurred by the Bank;
(i) a favorable opinion of counsel for the Borrowers, dated the Closing Date, in form and substance satisfactory to the Bank;
(j) copies of all instruments evidencing any Subordinated Debt of any Borrower and Guarantor together a satisfactory review of the same;
(k) evidence of the acquisition by Tridex of PSI on terms satisfactory to the Bank in all respects;
(l) evidence of the issuance by Tridex of 714,000 shares stock of Tridex to Xxxx Xxxxx, representing $5,000,000 of the acquisition purchase price of PSI's stock;
(m) evidence of successful placement by Tridex of at least $11,000,000 of the Subordinated Debt relating to the acquisition of PSI stock, with a current cash coupon interest rate of no greater than 12% (aplus deferred interest or PIK of not greater than 7%), with a bank or other institutional lender;
(n) evidence of payment by Tridex to Xxxx Xxxxx of $16,100,000 from available cash, representing a portion of the purchase price of PSI's stock;
(o) delivery to the Bank of year 2000 compliance forms satisfactory to the Bank in all respects;
(p) delivery to the Bank of year-end audited financial statements for both Tridex (consolidated) and PSI showing no material variations from the draft financial statements previously supplied by the Borrowers to the Bank;
(q) evidence of no material adverse change in the business, management, operations, properties, prospects or condition (financial or otherwise) of any Borrower or any of their respective Subsidiaries since the date of the commitment letter;
(r) evidence of liability and property insurance of the Borrowers satisfactory to the Bank, with suitable endorsements naming the Bank as loss payee;
(s) a Borrowing Base Certificate and a recent receivables and inventory aging satisfactory to the Bank;
(t) fair value Balance Sheets for each of the Borrowers; and
(u) evidence of the absence of any change in market conditions which, in the Bank's opinion, would materially impair a financial institution's ability to fund Loans of this type.
Appears in 1 contract
Samples: Credit Agreement (Tridex Corp)
Documentary Conditions Precedent. The obligation obligations of the Bank Banks to make the Revolving Credit Loan Loans constituting the initial borrowing is hereunder are subject to the condition precedent that the Bank Agent shall have received on or before the date of such Revolving Credit Loan Loans each of the following, in form and substance satisfactory to the Bank Agent and its counsel:
(a) the Note Notes duly executed by the Borrower;
(b) the Guaranty Security Documents duly executed by each Guarantorthe parties thereto;
(c) the Authorization Letter duly executed by the Borrower;
(d) a certificate of the Secretary or Assistant Secretary of the Borrower and each GuarantorBorrower, dated the Closing Effective Date, attesting to all corporate action taken by the Borrower and each GuarantorBorrower, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the Facility Documents to which it is a party and each other document to be delivered pursuant to this Agreement together with certified copies of the certificate or articles of incorporation and the by laws and any amendments thereto of the Borrower and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified , revoked or rescinded as of the date of the initial borrowing of the LoansAgreement;
(de) a certificate of the Secretary or Assistant Secretary of the Borrower and GuarantorBorrower, dated the Closing Effective Date, certifying the names and true signatures of the officers of the Borrower and Guarantor authorized to sign the Facility Documents to which it is a party and the other documents to be delivered by the Borrower and Guarantor under this Agreement;
(ef) a certificate of a duly authorized officer of the Borrower and GuarantorBorrower, dated the Closing Date, stating that the representations and warranties in Article 4 5 are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default;
(fg) a "long form" certificate favorable opinion of good standing counsel for the Borrower, dated the Closing Date, in substantially the form of Exhibit C and as to such other matters as the Borrower and GuarantorAgent or any Bank may reasonably request;
(gh) a recently dated certificate of the Security Agreements duly executed by Secretary of State of the Borrower and Guarantor together with (a)State of Borrower's formation as to its good standing.
Appears in 1 contract
Documentary Conditions Precedent. The obligation obligations of the Bank Banks to make the Revolving Credit Loan Loans constituting the initial borrowing is Borrowing and of the Fronting Bank to issue the Letters of Credit are subject to the condition precedent that the Bank Administrative Agent shall have received on or before the date of such Revolving Credit Loan Loans each of the following, in form and substance satisfactory to the Bank Administrative Agent and its counsel:
(a) the Note Revolving Notes duly executed by the Borrower;respective Borrowers
(b) the Guaranty Swingline Notes duly executed by each Guarantorthe respective Borrowers
(c) the Authorization Letter duly executed by the Borrowers;
(cd) the Pledge Agreement duly executed by Cannondale together with certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank;
(e) a favorable opinion of Levexx, Xxckxxxx & Xandxxx, Xxofessional Corporation, counsel for the Borrowers, dated the Closing Date, in substantially the form of Exhibit F and as to such other matters as the Administrative Agent or any Bank may reasonably request;
(f) a certificate of the Secretary or Assistant Secretary of each of the Borrower and each GuarantorBorrowers, dated the Closing Date, (i) attesting to all corporate action taken by each of 39 34 the Borrower and each GuarantorBorrowers, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the Facility Documents to which it is a party and each other document to be delivered pursuant to this Agreement together with certified and certifying true copies of the certificate or articles of incorporation and the by incorporation, by-laws and any amendments thereto other organizational documents of each of the Borrower Borrowers and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified , revoked or rescinded as of the date of the initial borrowing of the Loans;
(dii) a certificate of the Secretary or Assistant Secretary of the Borrower and Guarantor, dated the Closing Date, certifying the names and true signatures of the officers of each of the Borrower and Guarantor Borrowers authorized to sign the Facility Documents to which it is a party and the other documents to be delivered by the Borrower and Guarantor such Borrowers under this Agreement;
Agreement and (eiii) a certificate verifying that the charter and by-laws (or other analogous documents) of a duly authorized officer such Borrower attached thereto are true, complete and correct as of the Borrower and Guarantor, dated the Closing Date, stating that the representations and warranties in Article 4 are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default;
(f) a "long form" certificate of good standing of the Borrower and Guarantorthereof;
(g) certificates to the Security Agreements duly executed good standing or subsistence (or other analogous certificates) and certified copies of all charter documents with respect to each of the Borrowers certified by the Secretary of State (or other appropriate Governmental Authority) of its jurisdiction of incorporation and every other jurisdiction in which it does business;
(h) the Environmental Indemnification duly signed by the Borrowers;
(i) a certificate of the chief financial officer of Cannondale setting forth (i) computations demonstrating compliance with the covenants contained in Article 9 as determined as of the last day of the immediately preceding Fiscal Quarter and (ii) the computation of the Consolidated Average Funded Debt to IBITDA Ratio as determined as of the last day of the immediately preceding Fiscal Quarter (for Margin and facility fee purposes);
(j) Federal Reserve Form U-1 provided for in Regulation U issued by the Board of Governors of the Federal Reserve System, the statements made in which shall be such, in the opinion of the Administrative Agent, as to permit the transactions contemplated hereby in accordance with said Regulation U;
(k) payment by the Borrowers to the Agents of all expenses and fees incurred by the Agents in connection with the negotiation, execution and delivery of the Facility Documents and the syndication of the Loans, including legal fees not exceeding $40,000;
(l) absence of any change in market conditions which, in the Administrative Agent's opinion, would materially impair a financial institution's ability to fund Loans of this type;
(n) a letter from ABN AMRO Bank N.V. in form and substance satisfactory to the Administrative Agent to the effect that all security interests securing obligations of any Borrower to ABN AMRO Bank N.V. and Guarantor together with its affiliates have been released (a)other than mortgage Liens described on Schedule 8.3(a) hereto) and all agreements granting such security interests have been terminated or amended.
Appears in 1 contract
Samples: Credit Agreement (Cannondale Corp /)
Documentary Conditions Precedent. The obligation obligations of the Bank Banks to make the Revolving Credit Loan constituting initial Loans (or to issue Letters of Credit) on or after the initial borrowing is date hereof are subject to the condition conditions precedent that the that:
(a) each Bank shall have received on or before the date of such Revolving Credit Loan hereof each of the following, in form and substance reasonably satisfactory to the such Bank and its counsel:
(ai) this Agreement and the Note executed in favor of such Bank duly executed by the Borrower;
(b) the Guaranty duly executed by each Guarantor;
(cii) a certificate of the Secretary or Assistant Secretary of the Borrower and each Guarantorof the Guarantors, dated the Closing Date, attesting to all corporate action taken by the Borrower and each Guarantorsuch entity, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the Facility Documents to which it is a party and each other document to be delivered pursuant to this Agreement Agreement, together with certified copies of the certificate or articles of incorporation and the by by-laws and any amendments thereto of the Borrower and Guarantoreach of the Guarantors; each and, such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified modified, revoked or rescinded as of the date of the initial borrowing of the Loanssuch certificate;
(diii) a certificate of the Secretary or Assistant Secretary of the Borrower and Guarantoreach of the Guarantors, dated the Closing Date, certifying the names and true signatures of the officers of the Borrower and Guarantor such entity authorized to sign the Facility Documents to which it is a party and the other documents to be delivered by the Borrower and Guarantor such entity under this Agreement;
(eiv) a certificate of a duly authorized officer of the Borrower and GuarantorBorrower, dated the Closing Date, stating that the representations and warranties in Article 4 6 are true and correct on 33 such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default;
(fv) a "long form" certificate Guarantees, duly executed by each Guarantor;
(vi) an opinion of counsel for the Borrower and Guarantors, dated the Closing Date, in substantially the form of Exhibit C;
(vii) satisfactory evidence that the Borrower and the Guarantors are duly organized, validly existing and in good standing under the laws of their respective jurisdictions of incorporation and each other jurisdiction where qualification is necessary;
(viii) audited consolidated balance sheets of the Borrower and Guarantorits Subsidiaries as of February 2, 1996, and consolidated income statements and statements of cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, all prepared in accordance with GAAP, together with the unqualified opinion thereon of Deloitte & Touche, LLP independent certified public accountants, and unaudited consolidated balance sheet of the Borrower and its Subsidiaries as at November 8, 1996, together with income statements and statements of cash flows of the Borrower and its Subsidiaries for the fiscal quarter ended November 8, 1996, and for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, each prepared by or under the supervision of the chief financial officer of the Borrower in accordance with GAAP and, in addition, the Banks shall have been provided the opportunity to review any management letter prepared for the Borrower by its auditors in connection with such financial statements;
(ix) certificates of insurance covering the assets and the business of the Borrower and the Guarantors, in form and substance (including with respect to general liability and products liability insurance) satisfactory to the Banks;
(x) satisfactory evidence that neither the Borrower nor any Guarantor is in default with respect to any contractual obligations to which it is a party, the effect of which may be material and adverse to the Borrower or any Guarantor or to the ability of the Borrower or any Guarantor to perform its obligations hereunder or under the other Facility Documents; and
(xi) such other documents, instruments, approvals, opinions and evidence as the Banks may reasonably require.
(b) the Borrower shall have paid or caused to be paid to the Banks in full all fees and expenses required to be paid hereunder or in connection herewith, and including all fees and expenses of the Banks incurred in connection with the preparation, execution and delivery of this Agreement and the other Facility Documents and the consummation of the transactions contemplated thereby and including up to $20,000 of the fees of the Banks' special counsel, Rivkxx, Xxdlxx & Xremxx, xxus disbursements; 34
(c) the Borrower and the Guarantors shall have obtained all consents, permits and approvals required in connection with the execution, delivery and performance by the Borrower and the Guarantors of their obligations hereunder and such consents, permits and approvals shall continue in full force and effect;
(d) the Banks shall be satisfied that the proceeds of the initial Loans hereunder shall be applied to pay the Borrower's Existing Bank Debt in full on the date hereof and that all UCC-1 financing statements filed to secure the Borrower's obligations with respect to the Existing Bank Debt, if any, shall have been terminated;
(e) the Agent shall have been provided with copies of all credit agreements, loan agreements, indentures, mortgages and other documents relating to the extension of credit to the Borrower and shall be satisfied with its review of the foregoing;
(f) the Banks shall be satisfied with the form and content of all Schedules delivered by the Borrower pursuant to this Agreement or any document delivered in connection herewith; and
(g) all legal matters in connection with this financing shall be reasonably satisfactory to the Security Agreements duly executed by the Borrower Banks and Guarantor together with (a)their counsel.
Appears in 1 contract
Samples: Revolving Credit Agreement (Genovese Drug Stores Inc)
Documentary Conditions Precedent. The obligation of the Bank to make the Revolving Credit Loan constituting the initial borrowing Loans is subject to the condition conditions precedent that the Bank shall have received on or before the date of such Revolving Credit Loan Borrowing each of the following, in form and substance satisfactory to the Bank and its counsel:
(a) the Note Notes duly executed by the BorrowerBorrowers;
(b) the Guaranty Security Agreement duly executed by each Guarantorthe Borrowers, together with (i) acknowledgment copies of the financing statements (UCC-1) duly filed under the Uniform Commercial Code of all jurisdictions necessary or, in the opinion of the Bank, desirable to perfect the security interest created by the Security Agreement; (ii) certified copies of requests for information (Form UCC-11) identifying all of the financing statements on file with respect to the Borrowers in all jurisdictions referred to under (i), including the financing statements filed by the Bank against the Borrowers, indicating that no party claims an interest in any of the Collateral (as defined in the Security Agreement);
(c) a certificate of the Secretary or Assistant Secretary of the Borrower and each GuarantorBorrower, dated the Closing Date, attesting to all corporate action taken by the Borrower and each Guarantorsuch Borrower, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the Facility Documents to which it is a party and each other document to be delivered pursuant to this Agreement together with certified and certifying copies of the certificate or articles Certificate of incorporation Incorporation and the by by-laws and any amendments thereto of the Borrower and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified , revoked or rescinded as of the date of the initial borrowing of the LoansBorrower;
(d) a certificate of the Secretary or Assistant Secretary of the Borrower and Guarantoreach Borrower, dated the Closing Date, certifying the names and true signatures of the officers of the such Borrower and Guarantor authorized to sign the Facility Documents to which it is a party and the other documents to be delivered by the such Borrower and Guarantor under this Agreement;
(e) a certificate of a duly authorized officer of the Borrower and Guarantoreach Borrower, dated the Closing Date, stating that the representations and warranties in Article 4 5 of this Agreement, and Article 2 of the Security Agreement, and in each other Facility Document, are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default;
(f) a "long form" certificate of good standing of an Environmental Indemnification Agreement duly signed by the Borrower Borrowers in form and Guarantorsubstance satisfactory to the Bank;
(g) a certificate of good standing for each Borrower from the Security Agreements duly executed Secretary of the State of the state in which such Borrower is incorporated and each other jurisdiction in which such Borrower is qualified to do business;
(h) payment by the Borrowers to the Bank of the balance of the facility fee as required by Section 2.12(b), and all other expenses and fees incurred by the Bank;
(i) a favorable opinion of counsel for the Borrowers, dated the Closing Date, in substantially the form of Exhibit D and as to such other matters as the Bank may reasonably request;
(j) copies of all instruments evidencing any Subordinated Debt of any Borrower and Guarantor together with a satisfactory review of the same;
(a)k) evidence of no material adverse change in the business, management, operations, properties, prospects or condition (financial or otherwise) of any Borrower or any of their respective Subsidiaries since the date of the commitment letter; and
(l) evidence of the absence of any change in market conditions which, in the Bank's opinion, would materially impair a financial institution's ability to fund Loans of this type.
Appears in 1 contract
Documentary Conditions Precedent. The obligation obligations of the Bank Banks to make the Revolving Credit Loan Loans constituting the initial borrowing is Borrowing are subject to the condition precedent that the Bank Co-Agents and the Banks shall have received on or before the date of such Revolving Credit Loan Loans each of the following, in form and substance reasonably satisfactory to the Bank Administrative Agent and its counsel:
(a) the Note Notes duly executed by the BorrowerBorrower in the form of Exhibits A-1 and A-2 hereto;
(b) the Guaranty Authorization Letter duly executed by each Guarantorthe Borrower in the form of Exhibit E hereto;
(c) a favorable opinion of counsel for the Borrower, dated the Closing Date, in substantially the form of Exhibit G;
(d) a certificate of the Secretary or Assistant Secretary of the Borrower and each GuarantorBorrower, dated the Closing Date, attesting to all corporate action taken by the Borrower and each GuarantorBorrower, including resolutions of its Board of Directors Directors, authorizing the execution, delivery and performance of the Facility Documents to which it is a party and each other document to be delivered pursuant to this Agreement together with certified and certifying true copies of the certificate or articles of incorporation and (which shall also be certified by the by secretary of state of the jurisdiction of its incorporation), by-laws and any amendments thereto other organizational documents of the Borrower and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified , revoked or rescinded as of the date of the initial borrowing of the LoansBorrower;
(de) a certificate of the Secretary or Assistant Secretary of the Borrower and GuarantorBorrower, dated the Closing Date, certifying the names and true signatures of the officers of the Borrower and Guarantor authorized to sign the Facility Documents to which it is a party and the other documents to be delivered by the Borrower and Guarantor under this Agreement, together with an updated chart setting forth the corporate structure of the Borrower;
(ef) a certificate of good standing for the Borrower from the Secretary of State of each jurisdiction in which the Borrower is qualified to do business, and a certificate of good standing for each Subsidiary from the Secretary of State in each jurisdiction in which each Subsidiary is incorporated, provided that, for those Subsidiaries incorporated in a jurisdiction outside of the United States and qualified to do business outside the United States, the Borrower shall provide the Administrative Agent with a good standing certificate or a certificate or document from such foreign jurisdiction comparable to a good standing certificate acceptable to the Administrative Agent as soon as practicable after the Closing Date;
(g) a certificate of a duly authorized officer of the Borrower and GuarantorBorrower, dated the Closing Date, stating that that, to his or her knowledge, the representations and warranties in Article 4 this Agreement and the other Facility Documents to which it is a party are true and correct in all material respects on such date as though made on and as of such date and that date;
(h) a certificate of a duly authorized officer of the Borrower, dated the Closing Date, stating that, to the best of his or her knowledge, no event has occurred and is continuing which constitutes a Default or Event of Default;
(fi) the Environmental Indemnification duly signed by the Borrower in the form of Exhibit F hereto;
(j) payment by the Borrower to the Administrative Agent of the agency fee and all other expenses and fees incurred by the Administrative Agent under this Agreement, including the fees and expenses of the Administrative Agent's counsel;
(k) copies of key employment contracts;
(l) true and complete copies of debt documents as to credit arrangements listed on Schedule 5.10, including any Subordinated Debt, to the extent not previously delivered to the Administrative Agent acting as Agent under any previously existing credit arrangements, which shall be in form reasonably satisfactory to the Banks;
(m) copies of hazard and liability insurance policies, together with a "long form" certificate of good standing from a duly authorized officer certifying that Schedule 5.22 sets forth currently existing insurance policies covering each Subsidiary of the Borrower and Guarantorin compliance with this Agreement;
(gn) a payoff letter and releases from Fleet National Bank, as Agent, and the Security Agreements duly executed by Banks that are parties to the Borrower Borrower's Credit Agreement dated as of December 29, 1994, in form and Guarantor together substance satisfactory to the Administrative Agent; and
(o) such other documents and instruments as the Administrative Agent or its counsel may reasonably request in connection with (a)the execution of this Agreement and the other Facility Documents.
Appears in 1 contract
Samples: Credit Agreement (Nfo Worldwide Inc)
Documentary Conditions Precedent. The obligation Commitment of the Bank -------------------------------- to make the Revolving Credit Loan constituting the initial borrowing Loans under this Agreement is subject to the condition precedent that the Bank Borrower shall have received on or before the date of such Revolving Credit Loan each of delivered the following, in form and substance satisfactory to the Bank and its counselBank:
(a) a Revolving Note for the Note account of the Bank duly executed by the Borrower;
(b) the Guaranty duly executed by each Guarantor;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower and each GuarantorBorrower, dated the Closing Date, attesting on behalf of the Borrower to all corporate action taken by the Borrower and each GuarantorBorrower, including resolutions of its Board of Directors authorizing the execution, delivery and performance of this Agreement, the Facility Documents to which it is a party Revolving Note, the Pledge Agreement and each other document to be delivered pursuant to this Agreement together with certified copies of the certificate or articles of incorporation Agreement, and the by laws and any amendments thereto of the Borrower and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified , revoked or rescinded as of the date of the initial borrowing of the Loans;
(d) a certificate of the Secretary or Assistant Secretary of the Borrower and Guarantor, dated the Closing Date, certifying attesting to the names and true signatures of the officers of the Borrower and Guarantor authorized to sign this Agreement, the Facility Documents to which it is a party Revolving Note, the Pledge Agreement and the other documents to be delivered by the Borrower and Guarantor under this Agreement;
(ec) a certificate of a duly authorized officer Senior Officer of the Borrower and GuarantorBorrower, dated the Closing Date, stating certifying on behalf of the Borrower that (i) the representations and warranties in Article 4 5 are true true, complete and correct in all material respects on such date as though made on and as of such date and that date, (ii) no event has occurred and is continuing which constitutes a Default or Event of Default, (iii) the Borrower has performed and complied with all agreements and conditions contained in this Agreement which are required to be performed or complied with by the Borrower at or before the Closing Date, and (iv) there has been no material adverse change in the financial condition, operations, Properties, business, or as far as the Borrower can reasonably foresee, prospects of the Borrower and its Subsidiaries, if any, taken as a whole, since September 30, 1997;
(d) a certificate of a Senior Officer of the Borrower, substantially in the form of Exhibit C, which certificate shall include information required --------- to establish that the Borrower will be in compliance with the covenants set forth in this Agreement, after giving effect to the transactions contemplated herein;
(e) a certificate of good standing for the Borrower as of a recent date by the Secretary of State of its jurisdiction of incorporation and each state where the Borrower, by the nature of its business, is required to qualify to do business, except where the failure to be so qualified would not have a material adverse effect on the financial condition, operations, Properties, business or, as far as the Borrower can reasonably foresee, prospects of the Borrower and its Subsidiaries, taken as a whole;
(f) a "long form" certificate of good standing for USBENEFITS as of a recent date by the Borrower and GuarantorSecretary of State of its jurisdiction of incorporation and, if different, its principal place of business;
(g) a certificate or similar instrument from the Security Agreements duly executed appropriate tax authority in the State of California as to the payment by the Borrower of all taxes owed;
(h) a certificate of authority from each Insurance Commissioner certifying that USF RE is duly licensed and Guarantor together in good standing with each Insurance Commissioner;
(a)i) a favorable opinion of X.X. Xxxx, Professional Law Corporation, California counsel to the Borrower, dated the Closing Date, in substantially the form set forth in Exhibit D hereto; ------- (j) a favorable opinion of Xxxxxxxx & Xxxxxxx, Massachusetts insurance counsel to the Borrower, dated the Closing Date, in substantially the form set forth in Exhibit E hereto;
Appears in 1 contract
Samples: Credit Agreement (Centris Group Inc)
Documentary Conditions Precedent. The obligation obligations of the Bank Banks to make the Revolving Loans and the obligations of the Banks to issue any Letter of Credit Loan constituting the initial borrowing is are subject to the condition precedent that the Bank Agent shall have received on or before the date of such Revolving Loans or the issuance of such Letters of Credit Loan each of the following, in form and substance satisfactory to the Bank Agent and its counsel:
(a) counterparts of this Agreement executed by each of the Note Borrower, the Subsidiary Guarantors, the Banks and the Agent;
(b) the Notes duly executed by the Borrower;
(bc) the Guaranty Security Agreement, the Trademark Security Agreement and the Pledge Agreement duly executed by each Guarantorof the Obligors a party thereto together with evidence that all actions necessary or appropriate (or, in any event, as may be requested by the Agent) to create, perfect or protect the Liens created or purported to be created by the Security Agreement, the Trademark Security Agreement and the Pledge Agreement have been taken;
(cd) a certificate [Intentionally Omitted];
(e) certificates or other evidence of casualty insurance policies with appropriate loss payable endorsements indicating assignment of proceeds thereunder to the Agent for the ratable benefit of the Banks and certificates or other evidence of liability insurance with appropriate endorsements indicating the coverage of the Agent for the ratable benefit of the Banks as an additional insured;
(f) certificates of the Secretary or Assistant Secretary of each of the Borrower and each GuarantorObligors, dated the Closing Date, (i) attesting to all corporate action taken by the Borrower and each Guarantorsuch Obligor, including resolutions of its Board of Directors authorizing the execution, delivery and performance of each of the Facility Documents to which it is a party and each other document to be delivered pursuant to this Agreement together with certified copies of the certificate or articles of incorporation and the by laws and any amendments thereto of the Borrower and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amendedAgreement, modified , revoked or rescinded as of the date of the initial borrowing of the Loans;
(dii) a certificate of the Secretary or Assistant Secretary of the Borrower and Guarantor, dated the Closing Date, certifying the names and true signatures of the officers of the Borrower and Guarantor such Obligor authorized to sign the Facility Documents to which it is a party and the other documents to be delivered by the Borrower and Guarantor such Obligor under this AgreementAgreement and (iii) verifying that the charter and by-laws of such Obligor attached thereto are true, correct and complete as of the date thereof;
(eg) a certificate of a duly authorized officer of each of the Borrower and GuarantorObligors, dated the Closing Date, stating that the representations and warranties in Article 4 6 are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default;
(fh) a "long form" certificate of good standing certificates and certified copies of all charter documents with respect to each Obligor certified by the Secretary of State of its jurisdiction of incorporation, and evidence that each of the Borrower and GuarantorObligors is qualified as a foreign corporation in every other jurisdiction in which it does business where the failure to so qualify could reasonably be expected to have a Material Adverse Effect;
(gi) favorable opinions of (i) Goodwin, Procter & Xxxx X.L.P., outsidx xounsel to the Security Agreements duly executed by Obligors, (ii) Wolin, Fuller, Ridley & Miller L.L.X., xpecxxx Xexas counsel to the Obligors, and (iii) Fredrikson & Byron, X.X., xxecixx Xinnesota counsel to the Obligors, each dated the Closing Date, in substantially the form of Exhibit C and as to such other matters as the Agent or any Bank may reasonably request;
(j) certified complete and correct copies of the financial statements referred to in Section 6.05; and
(k) certified complete and correct copies of all documentation (the "All Seasons Term Sheet") evidencing the acquisition of all of the outstanding capital stock (and all rights, options and warrants to purchase capital stock) of All Seasons Services, Inc. (the "All Seasons Acquisition"). On the Closing Date, the Existing Banks shall surrender to the Borrower and Guarantor together with (a)the Existing Notes held by it under the Existing Credit Agreement, in each case marked "Replaced".
Appears in 1 contract
Documentary Conditions Precedent. The obligation obligations of the Bank Banks to make the Revolving Credit Loan Loans constituting the initial borrowing is hereunder are subject to the condition precedent that the Bank Agent shall have received on or before the date of such Revolving Credit Loan Loans each of the following, in form and substance satisfactory to the Bank Agent and its counsel:
(a) the Note Notes duly executed by the Borrower;
(b) the Guaranty Security Documents duly executed by each Guarantorthe parties thereto;
(c) the Authorization Letter duly executed by the Borrower;
(d) a certificate of the Secretary or Assistant Secretary of the Borrower and each GuarantorBorrower, dated the Closing Effective Date, attesting to all corporate action taken by the Borrower and each GuarantorBorrower, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the Facility Documents to which it is a party and each other document to be delivered pursuant to this Agreement together with certified copies of the certificate or articles of incorporation and the by laws and any amendments thereto of the Borrower and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified , revoked or rescinded as of the date of the initial borrowing of the LoansAgreement;
(de) a certificate of the Secretary or Assistant Secretary of the Borrower and GuarantorBorrower, dated the Closing Effective Date, certifying the names and true signatures of the officers of the Borrower and Guarantor authorized to sign the Facility Documents to which it is a party and the other documents to be delivered by the Borrower and Guarantor under this Agreement;
(ef) a certificate of a duly authorized officer of the Borrower and GuarantorBorrower, dated the Closing Date, stating that the representations and warranties in Article 4 5 are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default;
(fg) a "long form" certificate favorable opinion of good standing counsel for the Borrower, dated the Closing Date, in substantially the form of EXHIBIT C and as to such other matters as the Borrower and GuarantorAgent or any Bank may reasonably request;
(gh) a recently dated certificate of the Security Agreements duly executed by Secretary of State of the Borrower and Guarantor together with (a)State of Borrower's formation as to its good standing.
Appears in 1 contract
Documentary Conditions Precedent. The obligation of the Bank to make the Revolving Credit Loan constituting the initial borrowing Loans is subject to the condition conditions precedent that the Bank shall have received on or before the date of such Revolving Credit Loan Borrowing each of the following, in form and substance satisfactory to the Bank and its counsel:
(a) the Note duly executed by the Borrower;
(b) the Guaranty Security Agreement duly executed by each Guarantorthe Borrower, together with (i) acknowledgment copies of the financing statements (UCC-1) duly filed under the Uniform Commercial Code of all jurisdictions necessary or, in the opinion of the Bank, desirable to perfect the security interest created by the Security Agreement; (ii) certified copies of requests for information (Form UCC-11) identifying all of the financing statements on file with respect to the Borrower in all jurisdictions referred to under (i), including the financing statements filed by the Bank against the Borrower, indicating that no party claims an interest in any of the Collateral (as defined in the Security Agreement);
(c) a certificate of the Secretary or Assistant Secretary of the Borrower and each GuarantorBorrower, dated the Closing Date, attesting to all corporate action taken by the Borrower and each GuarantorBorrower, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the Facility Documents to which it is a party and each other document to be delivered pursuant to this Agreement together with certified and certifying copies of the certificate or articles Certificate of incorporation Incorporation and the by by-laws and any amendments thereto of the Borrower and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified , revoked or rescinded as of the date of the initial borrowing of the LoansBorrower;
(d) a certificate of the Secretary or Assistant Secretary of the Borrower and GuarantorBorrower, dated the Closing Date, certifying the names and true signatures of the officers of the Borrower and Guarantor authorized to sign the Facility Documents to which it is a party and the other documents to be delivered by the Borrower and Guarantor under this Agreement;
(e) a certificate of a duly authorized officer of the Borrower and GuarantorBorrower, dated the Closing Date, stating that the its representations and warranties in Article 4 5 of this Agreement, and Article 2 of the Security Agreement, and in each other Facility Document, are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default;
(f) a "long form" certificate of good standing of an Environmental Indemnification Agreement duly signed by the Borrower in form and Guarantorsubstance satisfactory to the Bank;
(g) a certificate of good standing for the Security Agreements Borrower from the Secretary of the State of the state in which the Borrower is incorporated and each other jurisdiction in which the Borrower is qualified to do business;
(h) payment by the Borrower to the Bank of the facility fee as required by Section 2.12, and all other expenses and fees incurred by the Bank for which the Bank has furnished the Borrower with an invoice;
(i) a favorable opinion of counsel for the Borrower, dated the Closing Date, in substantially the form of Exhibit D and as to such other matters as the Bank may reasonably request;
(j) a Subordination Agreement, in form acceptable to the Bank, duly executed by the Borrower and Guarantor FAvS together with copies of all instruments evidencing any Subordinated Debt of the Borrower and a satisfactory review of the same;
(a)k) evidence of no material adverse change in the business, management, operations, properties, prospects or condition (financial or otherwise) of the Borrower since the date of the commitment letter;
(l) a Borrowing Base Certificate and a recent Receivables aging of the Borrower;
(m) appropriate landlord waivers and consents; and
(n) evidence of insurance required by this Agreement.
Appears in 1 contract
Documentary Conditions Precedent. The obligation of This Agreement shall become effective when, and only when, the Bank to make the Revolving Credit Loan constituting the initial borrowing is subject to the condition precedent that the Bank Administrative Agent shall have received on or before the date of such Revolving Credit Loan effectiveness each of the following, in form and substance satisfactory to the Bank Administrative Agent and its counsel:
(a) the Note Notes duly executed by the Borrowerrespective Borrowers;
(b) the Guaranty Authorization Letter duly executed by each Guarantorthe Borrowers;
(c) the Security Agreement duly executed by the Borrowers together with (i) confirmation of the filing of financing statements (UCC-1) duly filed under the Uniform Commercial Code (or other satisfactory evidence that such statements have been filed prior to the Closing Date) of all jurisdictions necessary or, in the opinion of the Administrative Agent or any Bank, desirable to perfect the security interest created by the Security Agreement; and (ii) certified copies of requests for information (Form UCC-11) identifying all of the financing statements on file with respect to the Borrowers in all jurisdictions referred to under (i), indicating that no party claims an interest in any of the Collateral (as defined in the Security Agreement), other than interests permitted under the terms of this Agreement;
(d) the Trademark Agreement duly executed by Cannondale;
(e) the Subsidiary Pledge Agreement duly executed by Cannondale;
(f) a Phase I Environmental Site Assessment and an MAI appraisal, both in form and content acceptable to the Administrative Agent, in its sole discretion, with respect to the Bethel Mortgaged Property ;
(g) the Bethel Mortgages duly executed by Cannondale, together with executed financing statements and fixture filings (UCC-1) to be filed under the Uniform Commercial Code of all jurisdictions necessary or, in the opinion of the Administrative Agent, desirable to perfect the security interests created by the Mortgages;
(h) title insurance policies with respect to the Bethel Mortgaged Property issued by a title insurance company acceptable to the Administrative Agent;
(i) a current as-built survey of the Bethel Mortgaged Property, certified to the Borrowers, the Administrative Agent and the title company; 51 45
(j) a certificate of occupancy for the Secretary or Assistant Secretary Bethel Mortgaged Property;
(k) a favorable opinion of Kellxx Xxxx & Xarrxx XXX, counsel for the Borrower and each GuarantorBorrowers, dated the Closing Date, in substantially the form of Exhibit K and as to such other matters as the Administrative Agent or any Bank may reasonably request;
(l) a favorable opinion of foreign local counsel for such Subsidiary Borrower, dated the Closing Date, in form and substance satisfactory to the Administrative Agent;
(m) a certificate of the Secretary, Assistant Secretary or other appropriate officer of each of the Borrowers, dated the Closing Date, (i) attesting to all corporate action taken by each of the Borrower and each GuarantorBorrowers, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the Facility Documents to which it is a party and each other document to be delivered pursuant to this Agreement together with certified copies of the certificate or articles of incorporation and the by laws and any amendments thereto of the Borrower and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amendedAgreement, modified , revoked or rescinded as of the date of the initial borrowing of the Loans;
(dii) a certificate of the Secretary or Assistant Secretary of the Borrower and Guarantor, dated the Closing Date, certifying the names and true signatures of the officers of each of the Borrower and Guarantor Borrowers authorized to sign the Facility Documents to which it is a party and the other documents to be delivered by the Borrower and Guarantor such Borrowers under this AgreementAgreement and (iii) verifying that the charter and by-laws (or other analogous documents) of such Borrower attached thereto are true, complete and correct as of the date thereof;
(en) certificates to the good standing or subsistence (or other analogous certificates) and certified copies of all charter documents with respect to each of the Borrowers certified by the Secretary of State (or other appropriate Governmental Authority) of its jurisdiction of incorporation and every other jurisdiction in which it does business;
(o) a certificate of a duly authorized the chief financial officer or assistant treasurer of Cannondale setting forth (i) computations demonstrating compliance with the covenants contained in Article 9 as determined as of the Borrower last day of the immediately preceding Fiscal Quarter and Guarantor, dated (ii) the Closing Date, stating that computation of the representations and warranties in Article 4 are true and correct on such date Consolidated Average Funded Debt to EBITDA Ratio as though made on and determined as of such date the last day of the immediately preceding Fiscal Quarter (for Margin and that no event has occurred and is continuing which constitutes a Default or Event of Defaultfacility fee purposes);
(fp) a "long form" certificate Federal Reserve Forms U-1 provided for in Regulation U issued by the Board of good standing Governors of the Borrower and GuarantorFederal Reserve System, the statements made in which shall be such, in the opinion of the Administrative Agent, as to permit the transactions contemplated hereby in accordance with said Regulation U;
(gq) payment by the Borrowers to the Agents of all expenses and fees incurred by the Agents in connection with the negotiation, execution and delivery of the Facility Documents and the syndication of the Loans, including legal fees; 52
(r) absence of any change in market conditions which, in the Administrative Agent's opinion, would materially impair a financial institution's ability to fund Loans of this type;
(s) certificates of insurance (ACORX Xxxm 27) evidencing casualty and liability insurance policies in conformity with the requirements of the Security Agreement, the Bethel Mortgages and Section 7.5 of this Agreement and naming the Administrative Agent as loss payee, mortgagee and additional insured, as appropriate;
(t) the Security Agreements Collateral Assignment of Shareholder Note and the Collateral Assignment of Officer Note, each duly executed by the Borrower and Guarantor Cannondale, together with proper endorsement and delivery of the original promissory notes collaterally assigned thereunder and duly executed consents to assignment in the forms attached thereto;
(a)u) assignments of all collateral securing the promissory notes referenced in subsection 5.1(t) above, including the Collateral Assignment of Shareholder Mortgage; and
(v) the Closing Agreement substantially in the form of Exhibit L duly executed by Cannondale.
Appears in 1 contract
Samples: Credit Agreement (Cannondale Corp /)
Documentary Conditions Precedent. The obligation obligations of the Bank Banks to make the Revolving Credit Loan constituting Loans on or after the initial borrowing is date hereof are subject to the condition conditions precedent that the that:
(a) each Bank shall have received on or before the date of such Revolving Credit Loan hereof each of the following, in form and substance reasonably satisfactory to the such Bank and its counsel:
(ai) this Agreement and the Note executed in favor of such Bank duly executed by the Borrower;
(b) the Guaranty duly executed by each Guarantor;
(cii) a certificate of the Secretary or Assistant Secretary of the Borrower and each Guarantorof the Guarantors listed on Schedule 5.1A, dated the Closing Date, attesting to all corporate action taken by the Borrower and each Guarantorsuch entity, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the Facility Documents to which it is a party and each other document to be delivered pursuant to this Agreement Agreement, together with certified copies of the certificate or articles of incorporation and the by by-laws and any amendments thereto of the Borrower and Guarantoreach of such Guarantors; each and, such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified modified, revoked or rescinded as of the date of the initial borrowing of the Loanssuch certificate;
(diii) a certificate of the Secretary or Assistant Secretary of the Borrower and Guarantoreach of the Guarantors (which in the case of Guarantors may be in the form of an omnibus certificate), dated the Closing Date, certifying the names and true signatures of the officers of the Borrower and Guarantor such entity authorized to sign the Facility Documents to which it is a party and the other documents to be delivered by the Borrower and Guarantor such entity under this Agreement;
(eiv) a certificate of a duly authorized officer of the Borrower and GuarantorBorrower, dated the Closing Date, stating that the representations and warranties in Article 4 6 are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default;
(fv) a "long form" certificate Guarantees, duly executed by each Guarantor;
(vi) Security Agreements, duly executed by each of good standing the Operating Companies, together with fully executed and completed financing statements on form UCC-1, in proper form for filing in all jurisdictions necessary or, in the reasonable discretion of the Agent, desirable to perfect the security interests granted under the Security Agreements;
(vii) UCC search results identifying all financing statements on file with respect to the Borrower or the Guarantor in such jurisdictions as the Agent requires indicating that no party claims any interest in the property of the Borrower or the Guarantors other than the holders of Permitted Liens;
(viii) results of title searches with respect to such properties of the Borrower and the Guarantor as the Agent requires which shall be satisfactory to the Banks in all respects;
(ix) the Assignments, duly executed by each of the Borrower and the Guarantors in proper form for filing in all jurisdictions necessary or in the reasonable discretion of the Agent, desirable to record the Banks' interest in the leases on the Real Estate Assets;
(x) the Environmental Indemnity Agreement, duly executed by the Borrower and each Guarantor;
(xi) an opinion of counsel for the Borrower and Guarantors, dated the Closing Date, in substantially the form of Exhibit F;
(xii) satisfactory evidence that the Borrower and the Guarantors listed on Schedule 5.1A are duly organized, validly existing and in good standing under the laws of their respective jurisdictions of incorporation;
(xiii) audited consolidated balance sheets of the Borrower and the Guarantors as of December 31, 1995, and consolidated income statements and statements of cash flows of the Borrower and the Guarantors for the fiscal year then ended, all prepared in accordance with GAAP, together with the unqualified opinion thereon of Arthur Andersen, LLP, indexxxxxxt certifiex xxxxxx accountants, together with management prepared consolidating balance sheets, income statements and statements of cash flows as of the same date and covering the same fiscal period, and unaudited consolidated and consolidating balance sheet of the Borrower and the Guarantors as at September 30, 1996, together with income statements and statements of cash flows of the Borrower and the Guarantors for the fiscal quarter ended September 30, 1996 and for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, each prepared by or under the supervision of the chief financial officer of the Borrower in accordance with GAAP;
(xiv) evidence that the Borrower and the Guarantors maintain such insurance with respect to their business and properties as would customarily be maintained by similar businesses which are similarly situated;
(xv) satisfactory evidence that neither the Borrower nor any Guarantor is in default with respect to any contractual obligations to which it is a party, the effect of which may be material and adverse to the Borrower or any Operating Company, or the Borrower and the Guarantors, taken as a whole, or to the ability of the Borrower or any Guarantor to perform its obligations hereunder or under the other Facility Documents;
(xvi) a duly executed Borrowing Base Certificate containing information as of September 30, 1996, in form and substance satisfactory to the Banks;
(xvii) a property cash flow analysis in the form of the property cash flow analysis previously delivered to the Banks confirming information as of June 1, 1996, which shall in all respects be satisfactory to the Banks, together with a certification of a duly authorized officer of the Borrower (A) that no event or circumstance has occurred since June 1, 1996 which would have a material adverse effect on the information contained in such analysis or (B) describing all material changes in such analysis from the date thereof through the date hereof;
(xviii) such other documents, instruments, approvals, opinions and evidence as the Banks may reasonably require.
(b) the Borrower shall have paid or caused to be paid to the Banks in full all fees and expenses required to be paid hereunder or in connection herewith, and including all fees and expenses of the Banks incurred in connection with the preparation, execution and delivery of this Agreement and the other Facility Documents and the consummation of the transactions contemplated thereby and all expenses incurred by the Agent pursuant to Subparagraph (g) below;
(c) the Borrower and the Guarantors shall have obtained all consents, permits and approvals required in connection with the execution, delivery and performance by the Borrower and the Guarantors of their obligations hereunder and such consents, permits and approvals shall continue in full force and effect;
(d) the Banks shall be satisfied that the proceeds of the initial Loans hereunder shall be applied to pay the Borrower's Existing Bank Debt in full on the date hereof, that all UCC-1 financing statements filed to secure the Borrower's obligations with respect to the Existing Bank Debt shall have been terminated, and that all existing lines of credit in demand facilities of the Borrower and the Guarantor shall be terminated;
(e) the Agent shall have been provided with copies of all credit agreements, loan agreements, indentures, mortgages and other documents relating to the extension of credit to the Borrower and shall be satisfied with its review of the foregoing;
(f) the Banks shall be satisfied with the form and content of all Schedules delivered by the Borrower pursuant to this Agreement or any document delivered in connection herewith;
(g) the Security Agreements duly executed Agent shall have conducted a physical inspection of no fewer than twenty (20) Eligible Properties and shall be satisfied that such properties are occupied as represented by the Borrower Borrower, are in good and Guarantor together workmanlike condition and are otherwise in conformance with the Agent's minimal lending requirements;
(a)h) the Agent shall have received copies of owner's title insurance policies on each of the properties referred to in subparagraph (g) above;
(i) the Agent shall have verified the nine month Net Operating Income at September 30, 1996 (which shall be annualized and normalized) for each of the properties referred to in subparagraph (g) above, including analysis of future contractual income stream and verification of revenues and expenses;
(j) the Agent shall have completed a review of all leases relating to each of the properties referred to in subparagraph (g) above;
(k) all legal matters in connection with this financing shall be reasonably satisfactory to the Banks and their counsel.
Appears in 1 contract
Samples: Revolving Credit Agreement (United Capital Corp /De/)
Documentary Conditions Precedent. The obligation obligations of the Bank Banks to make the Revolving Credit Loan Loans constituting the initial borrowing is hereunder are subject to the condition precedent that the Bank Agent shall have received on or before the date of such Revolving Credit Loan Loans each of the following, in form and substance satisfactory to the Bank Agent and its counsel:
(a) the Note Notes duly executed by the BorrowerBorrower for each Bank;
(b) the Guaranty Reaffirmation Agreement duly executed by each Guarantorthe parties thereto, together with all instruments, transfer powers and other items required to be delivered in connection therewith;
(c) a Due Diligence Certificate completed and executed by each Credit Party;
(d) in the case of any leased real property on which any collateral described under any of the Security Documents is located, to the extent not previously provided to Agent, an agreement from the landlord for such property waiving any landlord’s Lien in respect of personal property kept at the premises subject to such lease;
(e) a search of all relevant real property indexes covering the period from the date that the Borrower or Hardinge Technology Systems, Inc. took title to the real property described in the Assignment of Leases and Rents through and including the Effective Date (with title re-dates through the Effective Date, if necessary), which will among other things, indicate: (i) that such Credit Parties are the owner of the fee simple interest in such real property, (b) that there are no liens or encumbrances thereon (including but not limited to, mortgages, judgment liens, mechanic’s liens, lease, security interest, easement and right-of-way or any other tight to, or interest in, property, which subsists in a third party and which constitutes a claim, lien, charge or liability attached to and binding upon such real property); provided, however, that the Agent will review all easements, covenants and conditions of record, and so long as such easements, covenants and/or conditions do not, in the sole discretion of the Agent and counsel for the Agent, interfere with the current or future intended use of such real property or render the title unmarketable, Agent may permit such easements, covenants and conditions to remain of record;
(f) evidence of the existence of insurance required to be maintained pursuant to Section 6.04, together with evidence that the Agent has been named as a Bank’s loss payee and an additional insured on all related insurance policies;
(g) payment by the Borrower of all fees, costs and expenses (including attorney costs) of the Agent to the extent invoiced prior to the Effective Date, plus such additional amounts of attorney costs as shall constitute the Agent’s reasonable estimate of attorney costs incurred or to be incurred by the Agent through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Borrower and the Agent);
(h) certified copies of Uniform Commercial Code search reports dated a date reasonably near to the Effective Date, listing all effective financing statements which name any Credit Party as debtors ( together with copies of such financing statements)
(i) Agent shall be satisfied that existing financing statements filed against Borrower naming Agent for the benefit of Bank as the secured creditor are sufficient to create a first priority security interest in all personal property collateral described in the Security Documents, except as otherwise permitted herein;
(j) Tax, and judgment search reports with respect to each Credit Party in all necessary or appropriate jurisdictions and under all legal and appropriate trade names indicating that there are no tax Liens or judgments on any of the collateral described in the Security Documents; and
(k) if required by the Agent, an Account Control Agreement, as referred to in the Security Documents duly executed by Chemung Canal Trust Company and any other parties required under the Security Document, the applicable Credit Party and the Agent;
(l) the delivery of the letter agreement by the Borrower to the Agent whereby the Borrower shall agree to deliver certain delineated items to the Bank on a post closing basis and within a specified time frame;
(m) Agent shall be satisfied that existing collateral assignments and/or intellectual property security agreements filed against Borrower and other Credit Parties in favor of Agent for the benefit of Bank as secured creditor are sufficient to create a first priority security interest in all registered intellectual property of the Credit Parties described in the Intellectual Property Security Agreement;
(n) a certificate of the Secretary or Assistant Secretary of the Borrower and each GuarantorCredit Party, dated the Closing Effective Date, attesting to all corporate action taken by the Borrower and each GuarantorCredit Party, including certified copies of all resolutions of its Board of Directors authorizing the execution, delivery and performance of the Facility Loan Documents to which it is a party and each other document to be delivered pursuant to this Agreement together with certified copies of the certificate or articles of incorporation and the by laws and any amendments thereto of the Borrower and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified , revoked or rescinded as of the date of the initial borrowing of the Loansparty;
(do) a certificate of the Secretary or Assistant Secretary of the Borrower and Guarantoreach Credit Party, dated the Closing Effective Date, certifying the names and true signatures of the officers of the Borrower and Guarantor Credit Party authorized to sign the Facility Loan Documents to which it is a party and the other documents to be delivered by the Borrower and Guarantor under this Agreementparty;
(ep) a certificate of a duly authorized officer Authorized Officer of the Borrower and GuarantorBorrower, dated the Closing Effective Date, stating that the representations and warranties in Article 4 5 are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default;
(fq) a "long form" favorable opinion of counsel for the Credit Parties, dated the Effective Date, in substantially the form of Exhibit E and as to such other matters as the Agent or any Bank may reasonably request;
(r) a recently dated certificate of the Secretary of State of the State of formation and of each foreign jurisdiction where it is required to be qualified to conduct business of the good standing of the Borrower and Guarantor;each Credit Party; and
(gs) such other documents as the Security Agreements duly executed by the Borrower and Guarantor together with (a)Agent or any Bank may reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Hardinge Inc)
Documentary Conditions Precedent. The obligation obligations of the Bank to make the Revolving Credit Loan Loans constituting the initial borrowing is are subject to the condition precedent that the Bank shall have received on or before the date of such Revolving Credit Loan Loans each of the following, in form and substance satisfactory to the Bank and its counsel:
(a) the Note Notes duly executed by the Borrower;
(b) the Guaranty Authorization Letter duly executed by each Guarantorthe Borrower;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower and each GuarantorBorrower, dated the Closing closing Date, attesting to all corporate action taken by the Borrower and each GuarantorBorrower, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the Facility Documents to which it is a party and each other document to be delivered pursuant to this Agreement together with certified copies of the certificate or articles of incorporation and the by laws and any amendments thereto of the Borrower and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified , revoked or rescinded as of the date of the initial borrowing of the LoansAgreement;
(d) a certificate of the Secretary or Assistant Secretary of the Borrower and GuarantorBorrower, dated the Closing Date, certifying the names and true signatures of the officers of the Borrower and Guarantor authorized to sign the Facility Documents to which it is a party and the other documents to be delivered by the Borrower and Guarantor under this Agreement;
(e) a certificate of a duly authorized officer of the Borrower and GuarantorBorrower, dated the Closing Date, stating that the representations and warranties in Article 4 5 are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default;
(f) a "long form" certificate favorable opinion of good standing counsel for the Borrower, dated the Closing Date, in substantially the form of Exhibit C and as to such other matters as the Borrower and Guarantor;
Bank may reasonably request; (g) a recently dated certificate of the Security Agreements duly executed by Secretary of State of the Borrower and Guarantor together with (a)State of Borrower's formation as to its good standing.
Appears in 1 contract
Samples: Credit Agreement (Hardinge Inc)
Documentary Conditions Precedent. The obligation obligations of the Bank Banks to make the Revolving Credit Loan constituting Loans on or after the initial borrowing is date hereof are subject to the condition conditions precedent that the that:
(a) each Bank shall have received on or before the date of such Revolving Credit Loan hereof each of the following, in form and substance reasonably satisfactory to the such Bank and its counsel:
(ai) this Agreement, executed by all parties hereto, and the Note Notes, duly executed by the Borrower;
(b) the Guaranty duly executed by each Guarantor;
(cii) a certificate of the Secretary or Assistant Secretary of the Borrower and each Guarantor, dated the Closing Date, attesting to all corporate action taken by the Borrower and each Guarantorsuch entity, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the Facility Documents to which it is a party and each other document to be delivered pursuant to this Agreement Agreement, together with certified copies of the certificate or articles of incorporation and the by by-laws and any amendments thereto of the Borrower Borrower; and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified modified, revoked or rescinded as of the date of the initial borrowing of the Loanssuch certificate and are in full force and effect;
(diii) a certificate of the Secretary or Assistant Secretary of the Borrower and Guarantor, dated the Closing Date, certifying the names and true signatures of the officers of the Borrower and Guarantor such entity authorized to sign the Facility Documents to which it is a party and the other documents to be delivered by the Borrower and Guarantor such entity under this Agreement;
(eiv) a certificate of a duly authorized officer of the Borrower and GuarantorBorrower, dated the Closing Date, stating that the representations and warranties in Article 4 6 hereof and in the other Facility Documents are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default;
(fv) a "long form" certificate favorable opinion of counsel for the Borrower, dated the Closing Date, in form and substance satisfactory to such Bank and its counsel;
(vi) satisfactory evidence that the Borrower is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation and each other jurisdiction where qualification is necessary;
(vii) the Borrower's annual report on Form 10-K for the year ended December 31, 1996 and the Borrower's quarterly report on Form l0-Q for the quarter ended September 30, 1997, each as filed by the Borrower with the Securities and Exchange Commission;
(viii) satisfactory evidence that the Borrower and Guarantorthe Guarantors maintain all insurance required to be maintained hereunder; and
(ix) such other documents, instruments, approvals, opinions and evidence as the Banks may reasonably require;
(b) the Borrower shall have paid or caused to be paid to the Agent for the benefit of the Banks in full the Up Front Fee and all other fees required to be paid hereunder or in connection herewith, to the Agent in full all accrued fees and expenses of the Agent in connection with the preparation, execution and delivery of this Agreement and the other Facility Documents and the consummation of the transactions contemplated thereby and to the Documentation Agent in full all accrued fees and expenses of the Documentation Agent;
(c) the Borrower and the Guarantors shall have obtained all consents, permits and approvals required in connection with the execution, delivery and performance by the Borrower and the Guarantors of their obligations hereunder and such consents, permits and approvals shall continue in full force and effect;
(d) the Borrower shall have provided reasonably satisfactory evidence that neither it nor any Guarantor is in default with respect to any contractual obligations to which it is a party, the effect of which could reasonably be expected to have a Material Adverse Effect;
(e) the Agent and the Banks shall have completed, and be satisfied with the results of, their due diligence investigations of the Borrower, including without limitation, the Borrower's information systems, premium finance contracts, participation program agreements and litigation;
(f) the Agent and the Banks shall have completed a satisfactory review of all debt instruments, mortgages, indentures and leases to which the Borrower is a party;
(g) simultaneously with the Security Agreements duly executed by first Loan hereunder, the Borrower shall have repaid all of its obligations under its existing credit facilities with Fleet Bank, N. A., The Bank of New York, Marine Midland Bank, Mellon Bank, N.A. and Guarantor together Atlantic Bank other than those existing loans bearing interest at a rate based on LIBOR and listed on Schedule 5.1 hereto;
(h) the Agent and the Banks shall be satisfied that no event or series of events has occurred that could result in a material adverse change in the business, operations, properties, assets, prospects or condition (financial or otherwise) of the Borrower; and
(i) all legal matters in connection with (a)this financing shall be satisfactory to the Banks and their counsel.
Appears in 1 contract
Documentary Conditions Precedent. The obligation of the Bank Lender to make the Revolving Credit initial Loan constituting the initial borrowing under this Agreement is subject to the condition precedent that the Bank Borrower shall have received delivered to the Lender, on or before prior to the date of such Revolving Credit Loan each of Closing Date, the following, in form and substance reasonably satisfactory to the Bank and its counselLender:
(a) the Note for the account of the Lender duly executed by the BorrowerBorrower in the principal amount of the Commitment;
(b) the Security Agreement duly executed by Borrower;
(c) the AAI Guaranty duly executed by each Guarantor;
(cd) the NCM Guaranty duly executed by NCM;
(e) the AAI Pledge Agreement duly executed by AAI;
(f) the NCM Pledge Agreement duly executed by NCM;
(g) the stock certificates representing all of the authorized, issued and outstanding capital stock of FLICA, NFL and the Borrower, as applicable (with undated stock powers signed in blank);
(h) the Receivables Purchase Agreement duly executed and delivered by the Borrower and NCM;
(i) the Financing Statements;
(j) confirmations of pledge executed by AAI, NCM, FLICA, NFL and Borrower;
(k) an intercreditor subordination agreement among the Lender, CSFB and AAI and its Subsidiaries (the “Intercreditor Subordination Agreement”), substantially in the form attached as Exhibit I hereto;
(l) a certificate of the Secretary or Assistant Secretary of the Borrower and each GuarantorBorrower, dated the Closing Date, attesting on behalf of the Borrower to all corporate action taken by the Borrower Borrower, including resolutions of its Board of Directors authorizing the execution, delivery and performance of this Agreement, the Security Agreement, the Note, the Receivables Purchase Agreements and each Guarantorother document to be delivered by the Borrower pursuant to this Agreement, and attesting to the names and true signatures of the officers of the Borrower authorized to sign this Agreement, the Security Agreement, the Receivables Purchase Agreement, the Note, and the other documents to be delivered by the Borrower under this Agreement and to the completeness and correctness of the attached Articles of Incorporation and Bylaws of the Borrower;
(m) a certificate of the Secretary or Assistant Secretary of AAI, dated the Closing Date, attesting on behalf of AAI to all corporate action taken by AAI, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the Facility Documents to which it is a party AAI Guaranty and the AAI Pledge Agreement and each other document to be delivered pursuant by AAI hereunder, and attesting to this Agreement together with certified copies the names and true signatures of the certificate or articles officers of incorporation AAI authorized to sign the AAI Guaranty, the AAI Pledge Agreement and the other documents to be delivered by laws AAI hereunder and any amendments thereto to the completeness and correctness of the Borrower attached Articles of Incorporation and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary Bylaws of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified , revoked or rescinded as of the date of the initial borrowing of the LoansAAI;
(dn) a certificate of the Secretary or Assistant Secretary of the Borrower and Guarantoreach Eligible MGA, dated the Closing Date, certifying attesting on behalf of such Eligible MGA to all corporate action taken by such Eligible MGA, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the Receivables Purchase Agreement and each other document to be delivered by the Eligible MGA hereunder, and attesting to the names and true signatures of the officers of the Borrower and Guarantor Eligible MGA authorized to sign the Facility Documents to which it is a party Receivables Purchase Agreement and the other documents to be delivered by the Borrower Eligible MGA hereunder and Guarantor under this Agreementto the completeness and correctness of the attached Articles of Incorporation and Bylaws of such MGA;
(eo) a certificate of good standing for the Borrower as of a recent date by the Secretary of State of its jurisdiction of incorporation and each state where the Borrower, by the nature of its business, is required to qualify to do business, except where the failure to be so qualified could not reasonably be expected to have a Materially Adverse Effect;
(p) a certificate of good standing for AAI as of a recent date by the Secretary of State of its jurisdiction of incorporation and each state where AAI, by the nature of its business, is required to qualify to do business, except where the failure to be so qualified could not reasonably be expected to have a Materially Adverse Effect;
(q) a certificate of good standing for each Eligible MGA as of a recent date by the Secretary of State of each jurisdiction of incorporation and each state where each Eligible MGA, by the nature of its business, is required to qualify to do business, except where the failure to be so qualified could not reasonably be expected to have a Materially Adverse Effect;
(r) a certificate of authority from each Insurance Commissioner certifying that each of FLICA and NFL are duly authorized officer licensed and in good standing with the applicable Insurance Commissioner, except where any such failure could not reasonably be expect to have a Materially Adverse Effect;
(s) a favorable opinion of general counsel to the Obligors and the Insurance Affiliate dated the Closing Date, in substantially the form set forth in Exhibit K hereto;
(t) a Master General Agent Contract for each Master General Agent, attached to a certificate of a Senior Officer of the Borrower Eligible MGA party thereto certifying that such Master General Agent Contract is a true, correct and Guarantorcomplete copy, including all amendments and supplements thereto, and is in full force and effect on the Closing Date;
(u) all corporate and legal proceedings and all instruments and agreements in connection with the transactions contemplated by this Agreement, the Security Agreement, the AAI Pledge Agreement, the AAI Guaranty, the NCM Guaranty, the NCM Pledge Agreement, the Receivables Purchase Agreement and the other Loan Documents shall be reasonably satisfactory in form and substance to the Lender and the Lender shall have received any and all other information and documents with respect to each Obligor and the Insurance Affiliate, which it may reasonably request;
(v) searches of the Uniform Commercial Code, tax lien, real property and other records as Lender may require;
(w) a Compliance Certificate, dated the Closing Date, stating that confirming compliance with the representations covenants set forth in Sections 6.1, 6.4, 6.8, 6.9, 6,10, and warranties in Article 4 are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default6.12;
(fx) a "long form" certificate of good standing copy of the Borrower executed agreement between CSFB and Guarantor;AAI waiving any default under any agreement between CSFB and AAI resulting from the execution, delivery and performance of the Loan Documents; and
(gy) the Security Agreements duly Waiver of Jury Trial and Notice of Final Agreement executed by the Borrower and Guarantor together with (a)all parties thereto.
Appears in 1 contract
Documentary Conditions Precedent. The obligation effectiveness of this Agreement and the obligations of the Bank Banks to make the Revolving Credit Loan Loans constituting the initial borrowing is Borrowing hereunder are subject to the condition precedent that the Bank Agent shall have received on or before the date of such Revolving Credit Loan effectiveness and of such Loans each of the following, in form and substance satisfactory to the Bank Agent and its counsel:
(a) the Note Notes duly executed by the Borrower;
(b) the Guaranty Authorization Letter, in the form of EXHIBIT 4.01(B) duly executed by each Guarantorthe Borrower;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower and each GuarantorBorrower, dated the Closing Date, attesting to all corporate action taken by the Borrower and each GuarantorBorrower, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the Facility Documents to which it is a party and each other document to be delivered pursuant to this Agreement together with certified copies of the certificate or articles of incorporation and the by laws and any amendments thereto of the Borrower and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified , revoked or rescinded as of the date of the initial borrowing of the LoansAgreement;
(d) a certificate of the Secretary or Assistant Secretary of the Borrower and GuarantorBorrower, dated the Closing Date, certifying the names and true signatures of the officers of the Borrower and Guarantor authorized to sign the Facility Documents to which it is a party and the other documents to be delivered by the Borrower and Guarantor under this Agreement;
(e) a certificate of a duly authorized officer of the Borrower and GuarantorBorrower, dated the Closing Date, stating that the representations and warranties in Article 4 ARTICLE 5 are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default;
(f) a "long form" certificate favorable opinion of good standing counsel for the Borrower, dated the Closing Date, in substantially the form of EXHIBIT 4.01(F) and as to such other matters as the Borrower and Guarantor;Agent or any Bank may reasonably request; and
(g) the Security Agreements duly executed by upfront fee, payable to the Borrower and Guarantor together with (a)Agent for the account of each Bank, calculated pursuant to the terms of SECTION 2.11.
Appears in 1 contract
Documentary Conditions Precedent. The obligation of the Bank each Lender to make the Revolving Credit Loan constituting the initial borrowing its Advance is subject to the condition precedent that the Bank each Lender shall have received on or before the date day of such Revolving Credit Loan each the Advance, and in any event on or before July 18, 2003, all of the following, each dated (unless otherwise indicated) as of the date hereof, in form and substance satisfactory to the Bank and its counseleach Lender:
(a) the Note duly The Notes, properly executed by on behalf of the Borrower;.
(b) The Pledge Agreement, properly executed on behalf of the Guaranty duly executed by each Guarantor;Borrower.
(c) a The Bonds, properly issued by the Borrower.
(d) A certificate of the Secretary secretary or Assistant Secretary assistant secretary of the Borrower and each Guarantor, dated the Closing Date, attesting to all corporate action taken by the Borrower and each Guarantor, including resolutions of its Board of Directors authorizing (i) certifying that the execution, delivery and performance of the Facility Loan Documents and other documents contemplated hereunder to which it the Borrower is a party have been duly approved by all necessary action of the board of directors of the Borrower, and each other document to be delivered pursuant to this Agreement together with certified attaching true and correct copies of the applicable resolutions granting such approval, (ii) certifying that attached to such certificate or are true and correct copies of the articles of incorporation and the by laws and any amendments thereto bylaws of the Borrower Borrower, together with such copies, and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified , revoked or rescinded as of the date of the initial borrowing of the Loans;
(diii) a certificate of the Secretary or Assistant Secretary of the Borrower and Guarantor, dated the Closing Date, certifying the names and true signatures of the officers of the Borrower and Guarantor that are authorized to sign the Facility Loan Documents to which it is a party and the other documents to be delivered by contemplated hereunder, together with the true signatures of such officers. The Lenders may conclusively rely on such certificate until they shall receive a further certificate of the secretary or assistant secretary of the Borrower canceling or amending the prior certificate and Guarantor under this Agreement;submitting the signatures of the officers named in such further certificate.
(e) a certificate of a duly authorized officer of the Borrower and Guarantor, dated the Closing Date, stating that the representations and warranties in Article 4 are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default;
(f) a "long form" A certificate of good standing of the Borrower and Guarantor;from the Secretary of State of the State of Minnesota dated not more than ten days before such date.
(f) A signed copy of an opinion of counsel for the Borrower, addressed to the Lenders substantially in the form of Exhibit E.
(g) All fees required to be paid as of the Security Agreements duly executed by date hereof pursuant to this Agreement or any Fee Letter.
(h) Such other documents as the Borrower and Guarantor together Agent or the Required Lenders may deem necessary or advisable in connection with (a)the issuance of the Bonds.
Appears in 1 contract
Samples: Credit Agreement (Allete Inc)
Documentary Conditions Precedent. The obligation obligations of the Bank Lenders to make the Revolving Credit Loan Loans constituting the initial borrowing is and of the Issuing Lender to issue the Letters of Credit are subject to the condition precedent that the Bank Administrative Agent shall have received on or before the date of such Revolving Credit Loan Closing Date each of the following, in form and substance satisfactory to the Bank Administrative Agent and its counsel:
(a) the Note counterparts of this Agreement duly executed by each of Micro Warehouse, the BorrowerSubsidiary Borrowers, the Subsidiary Guarantors, the Lenders and the Administrative Agent;
(b) the Guaranty Revolving Credit Notes duly executed by each Guarantorthe respective Borrower;
(c) a certificate certificates of the Secretary or Assistant Secretary of each of the Borrower and each GuarantorObligors, dated the Closing Date, (i) attesting to all corporate action taken by the Borrower and each Guarantorsuch Obligor, including resolutions of its Board of Directors authorizing the execution, delivery and performance of each of the Facility Documents to which it is a party and each other document to be delivered pursuant to this Agreement together with certified copies of the certificate or articles of incorporation and the by laws and any amendments thereto of the Borrower and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amendedAgreement, modified , revoked or rescinded as of the date of the initial borrowing of the Loans;
(dii) a certificate of the Secretary or Assistant Secretary of the Borrower and Guarantor, dated the Closing Date, certifying the names and true signatures of the officers of the Borrower and Guarantor such Obligor authorized to sign the Facility Documents to which it is a party and the other documents to be delivered by the Borrower and Guarantor such Obligor under this AgreementAgreement and (iii) verifying that the charter and by-laws (or other analogous documents) of such Obligor attached thereto are true, correct and complete as of the date thereof;
(ed) a certificate of a duly authorized officer of each of the Borrower and GuarantorObligors, dated the Closing Date, stating that the representations and warranties in Article 4 6 are true and correct in all material respects on such date as though made on and as of such date, all agreements and conditions required to be performed or complied with by such date have been performed and complied with and that no event has occurred and is continuing which constitutes a Default or Event of Default;
(fe) a "long form" certificate of certificates to the good standing or subsistence (or other analogous certificates) and certified copies of all charter documents with respect to each of the Borrower and Guarantor;
(g) the Security Agreements duly executed Obligors certified by the Borrower Secretary of State (or other appropriate Governmental Authority) of its jurisdiction of incorporation and Guarantor together with (a)evidence that each of the Obligors is qualified as a foreign corporation in every other jurisdiction in which it does business;
Appears in 1 contract
Documentary Conditions Precedent. The obligation Commitment of the Bank to make the Revolving Credit Loan constituting the initial borrowing Loans under this Agreement is subject to the condition precedent that the Bank Borrower shall have received on or before the date of such Revolving Credit Loan each of delivered the following, in form and substance satisfactory to the Bank and its counselBank:
(a) a Revolving Note for the Note account of the Bank duly executed by the Borrower;
(b) the Guaranty duly executed by each Guarantor;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower and each GuarantorBorrower, dated the Closing Date, attesting on behalf of the Borrower to all corporate action taken by the Borrower and each GuarantorBorrower, including resolutions of its Board of Directors authorizing the execution, delivery and performance of this Agreement, the Facility Documents to which it is a party Revolving Note and each other document to be delivered pursuant to this Agreement together with certified copies of the certificate or articles of incorporation Agreement, and the by laws and any amendments thereto of the Borrower and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified , revoked or rescinded as of the date of the initial borrowing of the Loans;
(d) a certificate of the Secretary or Assistant Secretary of the Borrower and Guarantor, dated the Closing Date, certifying attesting to the names and true signatures of the officers of the Borrower and Guarantor authorized to sign this Agreement, the Facility Documents to which it is a party Revolving Note, and the other documents to be delivered by the Borrower and Guarantor under this Agreement;
(ec) a certificate of a duly authorized officer Senior Officer of the Borrower and GuarantorBorrower, dated the Closing Date, stating certifying on behalf of the Borrower that (i) the representations and warranties in Article 4 are true true, complete and correct in all material respects on such date as though made on and as of such date and that date, (ii) no event has occurred and is continuing which constitutes a Default or Event of Default, (iii) the Borrower has performed and complied with all agreements and conditions contained in this Agreement which are required to be performed or complied with by the Borrower at or before the Closing Date, and (iv) there has been no material adverse change in the financial condition, operations, Properties, business, or as far as the Borrower can reasonably foresee, prospects of the Borrower and its Subsidiaries, if any, taken as a whole, since September 30, 1995;
(d) a certificate of a Senior Officer of the Borrower, substantially in the form of Exhibit C, which certificate shall include information required to establish that the Borrower will be in compliance with the covenants set forth in this Agreement, after giving effect to the Acquisition and the transactions contemplated herein;
(e) a certificate of good standing for the Borrower as of a recent date by the Secretary of State of its jurisdiction of incorporation and each state where the Borrower, by the nature of its business, is required to qualify to do business, except where the failure to be so qualified would not have a Materially Adverse Effect;
(f) a "long form" certificate or similar instrument from the appropriate tax authority in the State of good standing Delaware and, if different, its principal place of business, as to the payment by the Borrower and Guarantorof all taxes owed;
(g) a certificate of good standing for each of the Security Agreements duly executed Insurance Subsidiaries as of a recent date by the Secretary of State or Insurance Commissioner of its jurisdiction of incorporation and each state where such Insurance Subsidiary, by the nature of its business, is required to qualify to do business, except where the failure to be so qualified would not have a Materially Adverse Effect;
(h) with respect to each Insurance Subsidiary, a certificate or similar instrument from the appropriate tax authority in its jurisdiction of incorporation and, if different, its principal place of business, as to the payment by such Insurance Subsidiary of all taxes owed;
(i) a certificate of authority from each Insurance Commissioner certifying that each Insurance Subsidiary is duly licensed and in good standing with the applicable Insurance Commissioner;
(j) a favorable opinion of Duane, Morris & Heckscher, counsel to the Borrower, dated the Closing Date, in substantially the form set forth in Exhibit D hereto;
(k) a certificate of a Senior Officer of the Borrower certifying that each consent, license, approval and Guarantor together notice required in connection with the execution, delivery, performance, validity and enforceability of this Agreement and each other document and instrument required to be delivered in connection herewith and the consummation of the Acquisition is in full force and effect;
(a)l) all corporate and legal proceedings and all instruments and agreements in connection with the transactions contemplated by this Agreement shall be satisfactory in form and substance to the Bank and the Bank shall have received any and all other information and documents with respect to the Borrower which it may reasonably request;
(m) payment to the Bank of the facility fee in the amount of $60,000;
(n) payment to Day, Xxxxx & Xxxxxx, special counsel to the Bank, of its legal fees and disbursement; and
(o) a true and complete copy of the Acquisition Agreement (and any amendments) as in effect on the Closing Date, certified by a Senior Officer of the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Donegal Group Inc)
Documentary Conditions Precedent. The obligation obligations of the Bank Banks to make the Revolving Credit Loan Loans constituting the initial borrowing is hereunder are subject to the condition precedent that the Bank Agent shall have received on or before the date of such Revolving Credit Loan Loans each of the following, in form and substance satisfactory to the Bank Agent and its counsel:
(a) the Note Notes duly executed by the Borrower for each Bank;
(b) the Omnibus Assignment duly executed by the Existing Agent and the delivery by the Existing Agent to the Agent of all collateral described under the Security Documents and in the possession or control of the Existing Agent;
(c) the Security Documents duly executed by the parties thereto, together with all instruments, transfer powers and other items required to be delivered in connection therewith;
(d) the Guaranty duly executed by the parties thereto;
(e) a Due Diligence Certificate completed and executed by each Credit Party;
(f) in the case of any leased real property, an agreement from the landlord of all of the property on which any collateral described under any of the Security Documents is located waiving any landlord’s Lien in respect of personal property kept at the premises subject to such lease;
(g) the Assignment of Leases and Rents or similar instrument, as determined by Agent and counsel for the Agent, in their sole discretion, duly executed by the Borrower and Hardinge Technology Systems, Inc.;
(h) a search of all relevant real property indexes covering the period from the date that the Borrower or Hardinge Technology Systems, Inc. took title to the real property described in the Assignment of Leases and Rents through and including the Effective Date (with title re-dates through the Effective Date, if necessary), which will among other things, indicate: (i) that such Credit Parties are the owner of the fee simple interest in such real property, (b) that there are no liens or encumbrances thereon (including but not limited to, mortgages, judgment liens, mechanic’s liens, lease, security interest, easement and right-of-way or any other tight to, or interest in, property, which subsists in a third party and which constitutes a claim, lien, charge or liability attached to and binding upon such real property); provided, however, that the Agent will review all easements, covenants and conditions of record, and so long as such easements, covenants and/or conditions do not, in the sole discretion of the Agent and counsel for the Agent, interfere with the current or future intended use of such real property or render the title unmarketable, Agent may permit such easements, covenants and conditions to remain of record;
(i) evidence of the existence of insurance required to be maintained pursuant to Section 6.04, together with evidence that the Agent has been named as a Bank’s loss payee and an additional insured on all related insurance policies;
(j) evidence of payment by the Borrower of all accrued and unpaid fees, costs and expenses to the extent then due and payable on the Effective Date, together with all attorney costs of the Agent to the extent invoiced prior to the Effective Date, plus such additional amounts of attorney costs as shall constitute the Agent’s reasonable estimate of attorney costs incurred or to be incurred by the Agent through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Borrower and the Agent);
(k) certified copies of Uniform Commercial Code search reports dated a date reasonably near to the Effective Date, listing all effective financing statements which name any Credit Party as debtors, together with (i) copies of such financing statements, (ii) payoff letters evidencing repayment in full of all Debt required by Agent to be repaid, the termination of all agreements relating thereto and the release of all Liens granted in connection therewith, with Uniform Commercial Code or other appropriate termination statements and documents effective to evidence the foregoing and (iii) such other Uniform Commercial Code termination statements as the Agent may reasonably request;
(l) Tax, judgment and lien search reports (including without limitation, searches of the records of the United States Patent and Trademark Office) with respect to each Credit 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 other than the Liens permitted pursuant to Section 7.02; and
(m) the Agent shall have received each document (including Uniform Commercial Code financing statements) required by the Security Documents or under law or reasonably requested by the Agent to be filed, registered, recorded or held in its possession in order to continue or create in favor of the Agent, for the benefit of the Bank, a perfected Lien on the Collateral described therein, prior to any other Liens (subject only to Liens permitted pursuant to Section 7.02), in proper form for filing, registration, recording or possession (including duly executed undated stock power(s) for such certificate(s), executed in blank for all Capital Securities pledged pursuant to the Security Agreement);
(n) if required, Account Control Agreements, as referred to in the Security Documents duly executed by the parties required under the Security Document, the applicable Credit Party and the Agent;
(o) the Authorization Letter duly executed by the Borrower;
(b) the Guaranty duly executed by each Guarantor;
(cp) a certificate of the Secretary or Assistant Secretary of the Borrower and each GuarantorCredit Party, dated the Closing Effective Date, attesting to all corporate action taken by the Borrower and each GuarantorCredit Party, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the Facility Loan Documents to which it is a party and each other document to be delivered pursuant to this Agreement together with certified copies of the certificate or articles of incorporation and the by laws and any amendments thereto of the Borrower and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified , revoked or rescinded as of the date of the initial borrowing of the Loansparty;
(dq) a certificate of the Secretary or Assistant Secretary of the Borrower and Guarantoreach Credit Party, dated the Closing Effective Date, certifying the names and true signatures of the officers of the Borrower and Guarantor Credit Party authorized to sign the Facility Loan Documents to which it is a party and the other documents to be delivered by the Borrower and Guarantor under this Agreementparty;
(er) a certificate of a duly authorized officer Authorized Officer of the Borrower and GuarantorBorrower, dated the Closing Effective Date, stating that the representations and warranties in Article 4 5 are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default;
(fs) a "long form" favorable opinion of counsel for the Credit Parties, dated the Effective Date, in substantially the form of Exhibit E and as to such other matters as the Agent or any Bank may reasonably request;
(t) a recently dated certificate of the Secretary of State of the State of formation and of each foreign jurisdiction where it is required to be qualified to conduct business of the good standing of the Borrower and Guarantor;each Credit Party; and
(gu) such other documents as the Security Agreements duly executed by the Borrower and Guarantor together with (a)Agent or any Bank may reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Hardinge Inc)
Documentary Conditions Precedent. The obligation obligations of the Bank Banks to make the Revolving Credit Loan constituting Loans on or after the initial borrowing is date hereof are subject to the condition conditions precedent that the that:
(a) each Bank shall have received on or before the date of such Revolving Credit Loan hereof each of the following, in form and substance reasonably satisfactory to the such Bank and its counsel:
(ai) the Note this Agreement duly executed by the Borrower;
(bii) in the Guaranty case of each Revolving Credit Lender, the Revolving Credit Note executed in favor of such Revolving Credit Lender duly executed by each Guarantorthe Borrower;
(ciii) in the case of the Term Loan Lender, the Term Loan Note executed in favor of such Term Loan Lender duly executed by the Borrower;
(iv) a certificate of the Secretary or Assistant Secretary of the Borrower and each Guarantorof the Guarantors listed on Schedule 5.1(a), dated the Closing Date, attesting to all corporate action taken by the Borrower and each Guarantorsuch entity, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the Facility Documents to which it is a party and each other document to be delivered pursuant to this Agreement Agreement, together with certified copies of the certificate or articles of incorporation and the by by-laws and any amendments thereto of the Borrower and Guarantoreach of such Guarantors; each and, such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified modified, revoked or rescinded as of the date of the initial borrowing of the Loanssuch certificate;
(dv) a certificate of the Secretary or Assistant Secretary of the Borrower and Guarantoreach of the Guarantors (which in the case of Guarantors may be in the form of an omnibus certificate), dated the Closing Date, certifying the names and true signatures of the officers of the Borrower and Guarantor such entity authorized to sign the Facility Documents to which it is a party and the other documents to be delivered by the Borrower and Guarantor such entity under this Agreement;
(evi) a certificate of a duly authorized officer of the Borrower and GuarantorBorrower, dated the Closing Date, stating that the representations and warranties in Article 4 6 are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default;
(fvii) a "long form" certificate Guarantees, duly executed by each Guarantor;
(viii) Security Agreements, duly executed by each of good standing the Operating Companies, together with fully executed and completed financing statements on form UCC-1, in proper form for filing in all jurisdictions necessary or, in the reasonable discretion of the Agent, desirable to perfect the security interests granted under the Security Agreements;
(ix) UCC search results identifying all financing statements on file with respect to the Borrower or the Guarantor in such jurisdictions as the Agent requires indicating that no party claims any interest in the property of the Borrower or the Guarantors other than the holders of Permitted Liens;
(x) results of title searches with respect to such properties of the Borrower and the Guarantor as the Agent requires, which shall be satisfactory to the Banks in all respects;
(xi) the Assignments, duly executed by each of the Borrower and the Guarantors in proper form for filing in all jurisdictions necessary or in the reasonable discretion of the Agent, desirable to record the Banks' interest in the leases on the Real Estate Assets;
(xii) the Environmental Indemnity Agreement, duly executed by the Borrower and each Guarantor;
(xiii) an opinion of counsel for the Borrower and Guarantors, dated the Closing Date, in substantially the form of Exhibit F;
(xiv) satisfactory evidence that the Borrower and the Guarantors listed on Schedule 5.1A are duly organized, validly existing and in good standing under the laws of their respective jurisdictions of incorporation;
(xv) audited consolidated balance sheets of the Borrower and the Guarantors as of December 31, 1998, and consolidated income statements and statements of cash flows of the Borrower and the Guarantors for the fiscal year then ended, all prepared in accordance with GAAP, together with the unqualified opinion thereon of Xxxxxx Xxxxxxxx, LLP, independent certified public accountants, together with management prepared consolidating balance sheets, income statements and statements of cash flows as of the same date and covering the same fiscal period, and unaudited consolidated and consolidating balance sheet of the Borrower and the Guarantors as at September 30, 1999, together with income statements and statements of cash flows of the Borrower and the Guarantors for the fiscal quarter ended September 30, 1999 and for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, each prepared by or under the supervision of the chief financial officer of the Borrower in accordance with GAAP;
(xvi) evidence that the Borrower and the Guarantors maintain such insurance with respect to their business and properties as would customarily be maintained by similar businesses which are similarly situated;
(xvii) satisfactory evidence that neither the Borrower nor any Guarantor is in default with respect to any contractual obligations to which it is a party, the effect of which may be material and adverse to the Borrower or any Operating Company, or the Borrower and the Guarantors, taken as a whole, or to the ability of the Borrower or any Guarantor to perform its obligations hereunder or under the other Facility Documents;
(xviii) a duly executed Borrowing Base Certificate containing information as of September 30, 1999, in form and substance satisfactory to the Banks;
(xix) a property cash flow analysis in the form of the property cash flow analysis previously delivered to the Banks confirming information as of June 30, 1999, which shall in all respects be satisfactory to the Banks, together with a certification of a duly authorized officer of the Borrower (A) that no event or circumstance has occurred since June 30, 1999 which would have a material adverse effect on the information contained in such analysis with respect to any property or (B) describing all material changes in such analysis from the date thereof through the date hereof;
(xx) such other documents, instruments, approvals, opinions and evidence as the Banks may reasonably require.
(b) the Borrower shall have paid or caused to be paid to the Banks in full all fees and expenses required to be paid hereunder or in connection herewith, and including all fees and expenses of the Banks incurred in connection with the preparation, execution and delivery of this Agreement and the other Facility Documents and the consummation of the transactions contemplated thereby (including, without limitation, those set forth in Section 12.3 below) and all expenses incurred by the Agent pursuant to Subparagraph (g) below;
(c) the Borrower and the Guarantors shall have obtained all consents, permits and approvals required in connection with the execution, delivery and performance by the Borrower and the Guarantors of their obligations hereunder and such consents, permits and approvals shall continue in full force and effect;
(d) the Banks shall be satisfied that the proceeds of the initial Loans hereunder shall be applied to pay the Borrower's Existing Bank Debt in full on the date hereof, that all UCC-1 financing statements filed to secure the Borrower's obligations with respect to the Existing Bank Debt shall have been terminated, and that all existing lines of credit and demand facilities of the Borrower and the Guarantor shall have been terminated;
(e) the Agent shall have been provided with copies of all credit agreements, loan agreements, indentures, mortgages and other documents relating to the extension of credit to the Borrower and shall be satisfied with its review of the foregoing;
(f) the Banks shall be satisfied with the form and content of all Schedules delivered by the Borrower pursuant to this Agreement or any document delivered in connection herewith;
(g) the Security Agreements duly executed Agent shall have conducted a physical inspection of no fewer than twenty (20) Eligible Properties and shall be satisfied that such properties are occupied as represented by the Borrower Borrower, are in good and Guarantor together workmanlike condition and are otherwise in conformance with the Agent's normal lending requirements;
(ah) the Agent shall have received title reports on each of twenty (20)
Appears in 1 contract
Documentary Conditions Precedent. The obligation commitment of the Bank to make the Revolving Credit Loan constituting the initial borrowing Loans under this Agreement is subject to the condition precedent that the Bank Borrower shall have received on or before the date of such Revolving Credit Loan each of delivered the following, in form and substance satisfactory to the Bank and its counselBank:
(a) the Note Note, for the account of the Bank duly executed by the Borrower;
(b) the Guaranty duly executed by each GuarantorNegative Pledge Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower and each GuarantorBorrower, dated the Closing Date, attesting on behalf of the Borrower to all corporate action taken by the Borrower Borrower, including resolutions of its Board of Directors authorizing the execution, delivery and performance of this Agreement, the Note, the Security Agreement, the Negative Pledge Agreement and each Guarantorother document to be delivered pursuant to this Agreement, and attesting to the names and true signatures of the officers of the Borrower authorized to sign this Agreement, the Note, the Security Agreement and the other documents to be delivered by the Borrower under this Agreement;
(d) a certificate of the Secretary or Assistant Secretary of each Subsidiary, dated the Closing Date, attesting on behalf of such Subsidiary to all corporate action taken by such Subsidiary, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the Facility Documents to which it is a party Guaranty Agreement, the Subsidiary Security Agreement, the Subsidiary Financing Statements and each other document to be delivered pursuant to this Agreement together with certified copies of the certificate or articles of incorporation Agreement, and the by laws and any amendments thereto of the Borrower and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified , revoked or rescinded as of the date of the initial borrowing of the Loans;
(d) a certificate of the Secretary or Assistant Secretary of the Borrower and Guarantor, dated the Closing Date, certifying attesting to the names and true signatures of the officers of the Borrower and Guarantor such Subsidiary authorized to sign the Facility Documents to which it is a party Guaranty Agreement, the Subsidiary Security Agreement, the Subsidiary Financing Statements and the other documents to be delivered by the Borrower and Guarantor under this Agreement;
(e) a certificate of a duly authorized officer Senior Officer of the Borrower and GuarantorBorrower, dated the Closing Date, stating certifying on behalf of the Borrower that (i) the representations and warranties in Article 4 5 are true true, complete and correct in all material respects on such date as though made on and as of such date and that date, (ii) no event has occurred and is continuing which constitutes a Default or Event of Default, (iii) the Borrower has performed and complied with all agreements and conditions contained in this Agreement which are required to be performed or complied with by the Borrower at or before the Closing Date, and (iv) there has been no material adverse change in the financial condition, operations, Properties, business, or as far as the Borrower can reasonably foresee, prospects of the Borrower and its Subsidiaries, if any, taken as a whole, since June 30, 1999;
(f) a "long form" certificate copies of good standing (i) pro forma financial statements for the Borrower as of the end of the most recently ended fiscal quarter of the Borrower or more recently and Guarantor(ii) Borrower's most recent accounts receivable aging report, each in a form reasonably satisfactory to the Bank and providing sufficient information to establish that the Borrower will be in compliance with the covenants set forth in this Agreement, after giving effect to the transactions contemplated herein;
(g) a certificate of good standing for the Security Agreements duly executed Borrower, and each Subsidiary, as of a recent date by the Secretary of State of its jurisdiction of incorporation and each other state, if any, where the Borrower or such Subsidiary, by the nature of its business, is required to qualify to do business, except where the failure to be so qualified would not have a material adverse effect on the financial condition, operations, Properties and business of the Borrower or such Subsidiary or, as far as such Borrower can reasonably foresee, prospects of the Borrower and its Subsidiaries, taken as a whole;
(h) a certificate or similar instrument from the appropriate tax authority in the State of Connecticut and each other state, if any, where the Borrower and each Subsidiary, by the nature of its business, is required to qualify to do business, except where the failure to be so qualified would not have a material adverse effect on the financial condition, operations, Properties and business of the Borrower or such Subsidiary or, as far as the Borrower can reasonably foresee, prospects of the Borrower and its Subsidiaries, taken as a whole, as to the payment by the Borrower and Guarantor together such Subsidiary of all taxes owed;
(i) a favorable opinion of Cxxxxxxx & Lxxxxxxx, counsel to the Borrower and each Subsidiary, dated the Closing Date, in substantially the form set forth in Exhibit E hereto;
(j) evidence that each consent, license, approval and notice, required in connection with the execution, delivery, performance, validity and enforceability of this Agreement, the Security Agreement, the Negative Pledge Agreement and each other document and instrument required to be delivered in connection herewith, shall have been received or given and such consents, licenses, approvals and notices shall be in full force and effect;
(a)k) evidence that all of the outstanding Debt of the Borrower, as set forth in Schedule 5.10, has been fully paid and satisfied, or in the case of indebtedness to Brynwood Partners III, such indebtedness shall be subordinated to the Bank and extended to a period after the expiration of the Commitment Period as more particularly set forth in the Subordination Agreement;
(l) the Subordination Agreement;
(m) all corporate and legal proceedings and all instruments and agreements in connection with the transactions contemplated by this Agreement shall be satisfactory in form and substance to the Bank and the Bank shall have received any and all other information and documents with respect to the Borrower which it may reasonably request;
(n) payment to Day, Bxxxx & Hxxxxx LLP, special counsel to the Bank, of its legal fees and disbursements;
(o) most currently available financial statements for each Subsidiary;
(p) an audit of the Collateral (as such term is set forth in the Security Agreement and the Subsidiary Security Agreement) in form and substance satisfactory to the Bank and its special counsel; and
(q) a Landlord Waiver and Consent, in form and substance satisfactory to the Bank, duly executed and delivered by the lessor of the property located at 5000 Xxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 and more particularly described in that certain lease dated October 10, 1996 by and between Dxxxxx X. Xxxxxxxx and the Borrower, as amended.
Appears in 1 contract
Samples: Credit Agreement (Lincoln Snacks Co)
Documentary Conditions Precedent. The obligation effectiveness of the Bank to make amendment and restatement of the Revolving Existing Credit Loan constituting the initial borrowing Agreement provided for hereby is subject to the condition precedent that receipt by the Bank shall have received on or before Agent of the date of such Revolving Credit Loan following documents, each of which shall be satisfactory to the following, Agent and each Bank in form and substance satisfactory to the Bank and its counselsubstance:
(a) the Note Agent shall have received, with a counterpart for each Bank, this Agreement executed and delivered by a duly executed by authorized officer of the Borrower;
(b) the Guaranty Revolving Notes duly completed and executed by each Guarantorand, in the case of the Existing Bank, in exchange for the promissory note issued under the Existing Credit Agreement;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower and each GuarantorBorrower, dated the Closing Amendment Effective Date, attesting on behalf of the Borrower to all corporate action taken by the Borrower and each GuarantorBorrower, including resolutions of its Board of Directors authorizing the execution, delivery and performance of this Agreement, the Facility Documents to which it is a party Revolving Notes and each other document to be delivered pursuant to this Agreement together with certified copies of the certificate or articles of incorporation Agreement, and the by laws and any amendments thereto of the Borrower and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified , revoked or rescinded as of the date of the initial borrowing of the Loans;
(d) a certificate of the Secretary or Assistant Secretary of the Borrower and Guarantor, dated the Closing Date, certifying attesting to the names and true signatures of the officers of the Borrower and Guarantor authorized to sign this Agreement, the Facility Documents to which it is a party Revolving Notes, and the other documents to be delivered by the Borrower and Guarantor under this Agreement;
(ed) a certificate of a duly authorized officer Senior Officer of the Borrower, dated the Amendment Effective Date, certifying on behalf of the Borrower and Guarantor, dated the Closing Date, stating that (i) the representations and warranties in Article 4 are true true, complete and correct in all material respects on such date as though made on and as of such date and that date, (ii) no event has occurred and is continuing which constitutes a Default or Event of Default, (iii) the Borrower has performed and complied with all agreements and conditions contained in this Agreement which are required to be performed or complied with by the Borrower at or before the Amendment Effective Date, (iv) each consent, license, approval and notice required in connection with the execution, delivery, performance, validity and enforceability of this Agreement and each other document and instrument required to be delivered in connection herewith and the consummation of the Acquisition is in full force and effect, and (v) there has been no material adverse change in the financial condition, operations, Properties, business, or as far as the Borrower can reasonably foresee, prospects of the Borrower and its Subsidiaries, if any, taken as a whole, since December 31, 1997;
(e) a certificate of a Senior Officer of the Borrower, substantially in the form of Exhibit C, which certificate shall include information required to establish that the Borrower will be in compliance with the covenants set forth in this Agreement, after giving effect to the Acquisition and the transactions contemplated herein and in the Acquisition Agreement;
(f) a "long form" certificate of good standing of for the Borrower as of a recent date by the Secretary of State of its jurisdiction of incorporation and Guarantoreach state where the Borrower, by the nature of its business, is required to qualify to do business, except where the failure to be so qualified would not have a Materially Adverse Effect;
(g) a certificate or similar instrument from the Security Agreements appropriate tax authority in the State of Delaware and, if different, its principal place of business, as to the payment by the Borrower of all taxes owed;
(h) if obtainable by insurance companies generally in such jurisdiction, a certificate of good standing for each of the Insurance Subsidiaries as of a recent date by the Secretary of State or Insurance Commissioner of its jurisdiction of incorporation;
(i) a certificate of authority from each Insurance Commissioner certifying that each Insurance Subsidiary is duly executed licensed and in good standing with the applicable Insurance Commissioner in the state where it is domesticated;
(j) a favorable opinion of Duane, Morris & Heckscher LLP, counsel to the Borrower, dated the Amendment Effective Date, in substantially the form set forth in Exhibit D hereto;
(k) all corporate and legal proceedings and all instruments and agreements in connection with the transactions contemplated by this Agreement shall be satisfactory in form and substance to the Agent and the Agent shall have received any and all other information and documents with respect to the Borrower which it may reasonably request;
(l) payment to the Agent and the Banks of such fees as shall have been agreed upon by the Borrower and Guarantor together with the Agent;
(am) payment to Day, Xxxxx & Xxxxxx LLP, special counsel to the Agent, of its legal fees and disbursements (up to $14,000); and
(n) such other documents as the Agent or any Bank or special counsel to the Agent may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Donegal Group Inc)
Documentary Conditions Precedent. The obligation of Lessor to deliver the Bank Engine to make the Revolving Credit Loan constituting the initial borrowing Lessee under Clause 5 of this Agreement is subject to the condition precedent that the Bank shall have Lessor has received on or before the date of such Revolving Credit Loan each all of the following, in form and substance satisfactory to the Bank and its counsel:
(a) no later than three (3) Business Days prior to the Note duly executed Scheduled Delivery Date:
(i) Certificate of Incorporation and By-laws a copy of the Certificate of Incorporation and By-laws of the Lessee, certified by the BorrowerSecretary of Lessee;
(bii) the Guaranty duly executed by each Guarantor;
(c) Authorizations a certificate copy of the Secretary or Assistant Secretary of the Borrower and each Guarantor, dated the Closing Date, attesting to all corporate action taken by the Borrower authorizations and each Guarantor, including resolutions of its Board of Directors authorizing required for the execution, delivery and performance of the Facility Documents to which it is a party and each other document to be delivered pursuant to this Agreement together with certified copies by Lessee, including resolutions of the certificate Board of Directors of Lessee, or articles a committee thereof, certified by the Secretary of incorporation and Lessee, authorizing the lease by laws and any amendments thereto the Lessee of the Borrower Engine hereunder and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified , revoked or rescinded as of the date of the initial borrowing of the Loans;
(d) authorising a certificate of the Secretary or Assistant Secretary of the Borrower and Guarantor, dated the Closing Date, certifying the names and true signatures of the officers of the Borrower and Guarantor authorized specified person to sign the Facility Documents to which it is a party and the other documents to be delivered by the Borrower and Guarantor under execute this Agreement;
(eiii) Consents a certificate copy of a duly authorized officer all other authorizations, approvals, consents, licenses and registrations in form and substance reasonably satisfactory to Lessor necessary in connection with the execution, performance and delivery by, and validity and enforceability against, the Lessee of this Agreement (including but without prejudice to the generality of the Borrower and Guarantorforegoing, dated any necessary export and/or import licenses in respect of the Closing Date, stating Engine) or in the case of registrations which will only be available on Delivery evidence that the representations and warranties in Article 4 are true and correct same will have been obtained on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of DefaultDelivery;
(fiv) Process Agent Acceptance a "long form" certificate letter from the process agent referred to in Clause 20.17, irrevocably accepting appointment as the same on behalf of good standing of the Borrower and GuarantorLessee;
(gv) Fees and Duties evidence that all registration fees, customs duties and other taxes, fees, duties and charges payable to the Security Agreements duly executed governmental authorities and agencies in the State of Registration with respect to the Engine have been paid in full (or if the same are not yet payable that arrangements satisfactory to Lessor have been made for the payment thereof by the Borrower Lessee);
(vi) Insurances a copy of a certificate or certificates evidencing the Insurances to be maintained pursuant to Clause 13 (Insurances) and Guarantor a broker's undertaking in respect of such certificate(s) in form and substance reasonably satisfactory to Lessor;
(vii) Maintenance Programme a copy of the current Maintenance Programme;
(viii) Air Operator's Certificate and Air Transport Licence a certified copy of the current Air Operator's Certificate and Air Transport Licence issued by the Aviation Authority to the Lessee with respect to aircraft of the type to which the Engine will be attached;
(ix) Legal Opinion legal opinions from Fulbright & Xxxxxxxx, LLP and the Lessee's General Counsel and Xxxxxxxxx, Xxxxxx & Xxxxxxxx substantially to the effect set out in Schedules 2A, 2B and 2C; and
(x) Accounts The Lessee's management accounts for the year to 31 December 1997 indicating a minimum operating income of [***] and a minimum cash (for the purposes of this sub-clause cash shall be deemed to include certificates of deposit provided that the Lessee is not restricted from accessing and withdrawing the cash represented by such certificates of deposit in any way other than the payment of certain fees of the issuer) balance of [***] and an additional minimum cash equivalents balance of [***] (for the purposes of this sub-clause, cash equivalents shall be deemed to include pre-delivery payments made in respect of aircraft) together with (a)the latest available audited accounts of the Lessee;
Appears in 1 contract
Documentary Conditions Precedent. The obligation Commitment of the -------------------------------- Bank to make the Revolving Credit Loan constituting the initial borrowing Loans under this Agreement is subject to the condition precedent that the Bank Borrower shall have received on or before the date of such Revolving Credit Loan each of delivered the following, in form and substance satisfactory to the Bank and its counselBank:
(a) a a Revolving Note for the Note account of the Bank duly executed by the Borrower;
(b) the Guaranty duly executed by each Guarantor;
(c) b a certificate of the Secretary or Assistant Secretary of the Borrower and each GuarantorBorrower, dated the Closing Date, attesting on behalf of the Borrower to all corporate action taken by the Borrower and each GuarantorBorrower, including resolutions of its Board of Directors authorizing the execution, delivery and performance of this Agreement, the Facility Documents to which it is a party Revolving Note, the Pledge Agreement and each other document to be delivered pursuant to this Agreement together with certified copies of the certificate or articles of incorporation Agreement, and the by laws and any amendments thereto of the Borrower and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amended, modified , revoked or rescinded as of the date of the initial borrowing of the Loans;
(d) a certificate of the Secretary or Assistant Secretary of the Borrower and Guarantor, dated the Closing Date, certifying attesting to the names and true signatures of the officers of the Borrower and Guarantor authorized to sign this Agreement, the Facility Documents to which it is a party Revolving Note, the Pledge Agreement and the other documents to be delivered by the Borrower and Guarantor under this Agreement;
(e) c a certificate of a duly authorized officer Senior Officer of the Borrower and GuarantorBorrower, dated the Closing Date, stating certifying on behalf of the Borrower that (i) the representations and warranties in Article 4 5 are true true, complete and correct in all material respects on such date as though made on and as of such date and that date, (ii) no event has occurred and is continuing which constitutes a Default or Event of Default, (iii) the Borrower has performed and complied with all agreements and conditions contained in this Agreement which are required to be performed or complied with by the Borrower at or before the Closing Date, and (iv) there has been no material adverse change in the financial condition, operations, Properties, business, or as far as the Borrower can reasonably foresee, prospects of the Borrower and its Subsidiaries, if any, taken as a whole, since September 30, 1997;
(f) d a "long form" certificate of a Senior Officer of the Borrower, substantially in the form of Exhibit C, which certificate shall include information required --------- to establish that the Borrower will be in compliance with the covenants set forth in this Agreement, after giving effect to the transactions contemplated herein;
(e a certificate of good standing for the Borrower as of a recent date by the Secretary of State of its jurisdiction of incorporation and each state where the Borrower, by the nature of its business, is required to qualify to do business, except where the failure to be so qualified would not have a material adverse effect on the financial condition, operations, Properties, business or, as far as the Borrower can reasonably foresee, prospects of the Borrower and Guarantorits Subsidiaries, taken as a whole;
(g) the Security Agreements duly executed f a certificate of good standing for USBENEFITS as of a recent date by the Borrower and Guarantor together with (a)Secretary of State of its jurisdiction of incorporation and, if different, its principal place of business;
Appears in 1 contract
Samples: Credit Agreement (Centris Group Inc)
Documentary Conditions Precedent. The obligation effectiveness of this Agreement, the obligations of the Bank Banks to make the Revolving Loans and the obligations of Chase to issue any Letter of Credit Loan constituting the initial borrowing is are subject to the condition precedent that the Bank Agent shall have received on or before the date of such Revolving Loans or the issuance of such Letters of Credit Loan each of the following, in form and substance satisfactory to the Bank Agent and its counsel:
(a) counterparts of this Agreement executed by each of the Note Borrower, the Subsidiary Guarantors, the Banks and the Agent;
(b) the Notes duly executed by the Borrower;
(bc) evidence that all actions necessary or appropriate (or, in any event, as may be requested by the Guaranty duly executed Agent) to create, perfect or protect the Liens created or purported to be created by each Guarantorthe Security Agreement, the Trademark Security Agreement and the Pledge Agreement have been taken;
(cd) a certificate certificates of the Secretary or Assistant Secretary of each of the Borrower and each GuarantorObligors, dated the Closing Date, (i) attesting to all corporate action taken by the Borrower and each Guarantorsuch Obligor, including resolutions of its Board of Directors authorizing the execution, delivery and performance of each of the Facility Documents to which it is a party and each other document to be delivered pursuant to this Agreement together with certified copies of the certificate or articles of incorporation and the by laws and any amendments thereto of the Borrower and Guarantor; each such certificate shall be executed by the respective Secretary or Assistant Secretary of the Borrower and Guarantor and shall state that the resolutions and corporate documents thereby certified have not been amendedAgreement, modified , revoked or rescinded as of the date of the initial borrowing of the Loans;
(dii) a certificate of the Secretary or Assistant Secretary of the Borrower and Guarantor, dated the Closing Date, certifying the names and true signatures of the officers of the Borrower and Guarantor such Obligor authorized to sign the Facility Documents to which it is a party and the other documents to be delivered by the Borrower and Guarantor such Obligor under this AgreementAgreement and (iii) verifying that the charter and by-laws of such Obligor attached thereto are true, correct and complete as of the date thereof;
(e) a certificate of a duly authorized officer of each of the Borrower and GuarantorObligors, dated the Closing Date, stating that the representations and warranties in Article 4 6 are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default;
(f) a "long form" certificate of good standing certificates and certified copies of all charter documents with respect to each Obligor certified by the Secretary of State of its jurisdiction of incorporation, and evidence that each of the Borrower and GuarantorObligors is qualified as a foreign corporation in every other jurisdiction in which it does business where the failure to so qualify could reasonably be expected to have a Material Adverse Effect;
(g) favorable opinions of (i) Goodwin, Procter & Xxxx X.L.P., outside xxunsel to the Security Agreements duly executed by Obligors, (ii) Wolin, Fuller, Ridley & Miller L.L.X., xxecixx Xxxas counsel to the Obligors, and (iii) Fredrikson & Byron, X.X., xxxciax Xxnnesota counsel to the Obligors, each dated the Closing Date, in substantially the form of Exhibit C and as to such other matters as the Agent or any Bank may reasonably request;
(h) certified complete and correct copies of the financial statements referred to in Section 6.05; and
(i) evidence of the current status of the sale-leaseback facilities entered into or proposed to be entered into with Franchise Finance Corporation of America ("FFCA") and AEI Fund Management, Inc. ("AEI"). On the Closing Date, the Banks shall surrender to the Agent to be delivered to the Borrower and Guarantor together with (a)the Existing Notes held by it under the Existing Credit Agreement, in each case marked "Replaced".
Appears in 1 contract
