Documentary Conditions Precedent. The obligations of the Banks to make the Loans constituting the borrowing hereunder are subject to the condition precedent that the Agent shall have received on or before the date of such Loans each of the following, in form and substance satisfactory to the Agent and its counsel: (a) the Notes duly executed by the Borrower for each Bank; (b) the Reaffirmation Agreement duly executed by the 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 each Credit Party, dated the Effective Date, attesting to all corporate action taken by the Credit Party, including certified copies of all resolutions of its Board of Directors authorizing the execution, delivery and performance of the Loan Documents to which it is a party; (o) a certificate of the Secretary or Assistant Secretary of each Credit Party, dated the Effective Date, certifying the names and true signatures of the officers of the Credit Party authorized to sign the Loan Documents to which it is a party; (p) a certificate of a duly Authorized Officer of the Borrower, dated the Effective Date, stating that the representations and warranties in 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; (q) a 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 each Credit Party; and (s) such other documents as the Agent or any Bank may reasonably request.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Hardinge Inc)
Documentary Conditions Precedent. The effectiveness of this Agreement, the obligations of the Banks to make the Loans constituting and the borrowing hereunder obligations of Chase to issue any Letter of Credit are subject to the condition precedent that the Agent shall have received on or before the date of such Loans or the issuance of such Letters of Credit each of the following, in form and substance satisfactory to the Agent and its counsel:
(a) counterparts of this Agreement executed by each of the Borrower, the Subsidiary Guarantors, the Banks and the Agent;
(b) the Notes duly executed by the Borrower for each Bank;
(b) the Reaffirmation Agreement duly executed by the parties thereto, together with all instruments, transfer powers and other items required to be delivered in connection therewithBorrower;
(c) a Due Diligence Certificate completed 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 executed by each Credit Partythe Pledge Agreement have been taken;
(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 certificates of the Secretary or Assistant Secretary of each Credit Partyof the Obligors, dated the Effective Closing Date, (i) attesting to all corporate action taken by the Credit Partysuch Obligor, including certified copies of all resolutions of its Board of Directors authorizing the execution, delivery and performance of each of the Loan Facility Documents to which it is a party;
party and each other document to be delivered pursuant to this Agreement, (oii) a certificate of the Secretary or Assistant Secretary of each Credit Party, dated the Effective Date, certifying the names and true signatures of the officers of the Credit Party such Obligor authorized to sign the Loan Facility Documents to which it is a partyparty and the other documents to be delivered by such Obligor under this Agreement and (iii) verifying that the charter and by-laws of such Obligor attached thereto are true, correct and complete as of the date thereof;
(pe) a certificate of a duly Authorized Officer authorized officer of each of the BorrowerObligors, dated the Effective Closing Date, stating that the representations and warranties in Article 5 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;
(qf) 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 Obligors 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 opinion opinions of (i) Goodwin, Procter & ▇▇▇▇ ▇.L.P., outside ▇▇unsel to the Obligors, (ii) Wolin, Fuller, Ridley & Miller L.L.▇., ▇▇eci▇▇ ▇▇xas counsel for to the Credit PartiesObligors, and (iii) Fredrikson & Byron, ▇.▇., ▇▇▇cia▇ ▇▇nnesota counsel to the Obligors, each dated the Effective Closing Date, in substantially the form of Exhibit E C and as to such other matters as the Agent or any Bank may reasonably request;
(rh) a recently dated certificate certified complete and correct copies of the Secretary of State of the State of formation and of each foreign jurisdiction where it is required financial statements referred to be qualified to conduct business of the good standing of each Credit Partyin Section 6.05; and
(si) such other documents as 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 or any Bank may reasonably requestto be delivered to the Borrower the Existing Notes held by it under the Existing Credit Agreement, in each case marked "Replaced".
Appears in 1 contract
Documentary Conditions Precedent. The obligations of the Banks to make the Loans constituting on or after the borrowing hereunder date hereof are subject to the condition conditions precedent that the Agent that:
(a) each Bank shall have received on or before the date of such Loans hereof each of the following, in form and substance reasonably satisfactory to the Agent such Bank and its counsel:
(ai) this Agreement and the Notes Note executed in favor of such Bank duly executed by the Borrower for each BankBorrower;
(b) the Reaffirmation Agreement duly executed by the 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;
(nii) a certificate of the Secretary or Assistant Secretary of the Borrower and each Credit Partyof the Guarantors listed on Schedule 5.1A, dated the Effective Closing Date, attesting to all corporate action taken by the Credit Partysuch entity, including certified copies of all resolutions of its Board of Directors authorizing the execution, delivery and performance of the Loan Facility Documents and each other document to which it is a partybe delivered pursuant to this Agreement, together with certified copies of the certificate or articles of incorporation and the by-laws of the Borrower and each of such Guarantors; and, such certificate shall state that the resolutions and corporate documents thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate;
(oiii) a certificate of the Secretary or Assistant Secretary of the Borrower and each Credit Partyof the Guarantors (which in the case of Guarantors may be in the form of an omnibus certificate), dated the Effective Closing Date, certifying the names and true signatures of the officers of the Credit Party such entity authorized to sign the Loan Facility Documents and the other documents to which it is a partybe delivered by such entity under this Agreement;
(piv) a certificate of a duly Authorized Officer authorized officer of the Borrower, dated the Effective Closing Date, stating that the representations and warranties in Article 5 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;
(qv) a favorable Guarantees, duly executed by each Guarantor;
(vi) Security Agreements, duly executed by each of 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 Credit PartiesBorrower and Guarantors, dated the Effective Closing Date, in substantially the form of Exhibit E and as to such other matters as the Agent or any Bank may reasonably requestF;
(rxii) 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, inde▇▇▇▇▇▇t certifie▇ ▇▇▇▇▇▇ 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 recently dated certificate 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 Secretary property cash flow analysis previously delivered to the Banks confirming information as of State June 1, 1996, which shall in all respects be satisfactory to the Banks, together with a certification of a duly authorized officer of the State of formation 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 of each foreign jurisdiction where it is 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 qualified to conduct business paid hereunder or in connection herewith, and including all fees and expenses of the good standing Banks incurred in connection with the preparation, execution and delivery of each Credit Party; andthis 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;
(sc) 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 as 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 Agent or any Bank may 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, are in good and workmanlike condition and are otherwise in conformance with the Agent's minimal lending requirements;
(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 requestsatisfactory to the Banks and their counsel.
Appears in 1 contract
Sources: Revolving Credit Agreement (United Capital Corp /De/)
Documentary Conditions Precedent. The obligations obligation of the Banks Bank to make the Loans constituting the borrowing hereunder are is subject to the condition conditions precedent that the Agent Bank shall have received on or before the date of such Loans Borrowing each of the following, in form and substance satisfactory to the Agent Bank and its counsel:
(a) the Notes duly executed by the Borrower for each BankBorrowers;
(b) the Reaffirmation Security Agreement duly executed by the parties theretoBorrowers, together with (i) acknowledgment copies of the financing statements (UCC-1) duly filed under the Uniform Commercial Code of all instrumentsjurisdictions necessary or, transfer powers and other items required in the opinion of the Bank, desirable to be delivered 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 connection therewithall 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 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 each Credit PartyBorrower, dated the Effective Closing Date, attesting to all corporate action taken by the Credit Partysuch Borrower, including certified copies of all resolutions of its Board of Directors authorizing the execution, delivery and performance of the Loan Facility Documents to which it is a partyparty and each other document to be delivered pursuant to this Agreement and certifying copies of the Certificate of Incorporation and by-laws of such Borrower;
(od) a certificate of the Secretary or Assistant Secretary of each Credit PartyBorrower, dated the Effective Closing Date, certifying the names and true signatures of the officers of the Credit Party such Borrower authorized to sign the Loan Facility Documents to which it is a partyparty and the other documents to be delivered by such Borrower under this Agreement;
(pe) a certificate of a duly Authorized Officer authorized officer of the each Borrower, dated the Effective Closing Date, stating that the representations and warranties in Article 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;
(qf) an Environmental Indemnification Agreement duly signed by the Borrowers in form and substance satisfactory to the Bank;
(g) a certificate of good standing for each Borrower from the 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 Credit PartiesBorrowers, dated the Effective Closing Date, in substantially the form of Exhibit E D and as to such other matters as the Agent or any Bank may reasonably request;
(rj) copies of all instruments evidencing any Subordinated Debt of any Borrower and a recently dated certificate satisfactory review of the Secretary same;
(k) evidence of State 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 State of formation and of each foreign jurisdiction where it is required to be qualified to conduct business of the good standing of each Credit Partycommitment letter; and
(sl) such other documents as evidence of the Agent or absence of any Bank may reasonably requestchange 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 obligations Commitment of the Banks Bank -------------------------------- to make the Revolving Loans constituting the borrowing hereunder are under this Agreement is subject to the condition precedent that the Agent Borrower shall have received on or before the date of such Loans each of delivered the following, in form and substance satisfactory to the Agent and its counselBank:
(a) a Revolving Note for the Notes account of the Bank duly executed by the Borrower for each BankBorrower;
(b) the Reaffirmation Agreement duly executed by the 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 each Credit Partythe Borrower, dated the Effective Closing Date, attesting on behalf of the Borrower to all corporate action taken by the Credit PartyBorrower, including certified copies of all resolutions of its Board of Directors authorizing the execution, delivery and performance of this Agreement, the Loan Documents Revolving Note, the Pledge Agreement and each other document to which it is a party;
(o) a certificate of the Secretary or Assistant Secretary of each Credit Partybe delivered pursuant to this Agreement, dated the Effective Date, certifying and attesting to the names and true signatures of the officers of the Credit Party Borrower authorized to sign this Agreement, the Loan Documents Revolving Note, the Pledge Agreement and the other documents to which it is a partybe delivered by the Borrower under this Agreement;
(pc) a certificate of a duly Authorized Senior Officer of the Borrower, dated the Effective Closing Date, stating certifying on behalf of the Borrower that (i) the representations and warranties in Article 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;
(qd) 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 certificate of good standing for USBENEFITS as of a recent date by the Secretary of State of its jurisdiction of incorporation and, if different, its principal place of business;
(g) a certificate or similar instrument from the 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 in good standing with each Insurance Commissioner;
(i) a favorable opinion of ▇.▇. ▇▇▇▇, Professional Law Corporation, California counsel for to the Credit PartiesBorrower, dated the Effective Closing Date, in substantially the form set forth in Exhibit D hereto; ------- (j) a favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Massachusetts insurance counsel to the Borrower, dated the Closing Date, in substantially the form set forth in Exhibit E and as to such other matters as the Agent or any Bank may reasonably requesthereto;
(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 each Credit Party; and
(s) such other documents as the Agent or any Bank may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Centris Group Inc)
Documentary Conditions Precedent. The obligations of the Banks to make the Loans constituting the borrowing hereunder are subject to the condition precedent that the Agent shall have received on or before the date of such Loans each of the following, in form and substance satisfactory to the Agent and its counsel:
(a) the Notes duly executed by the Borrower for each Bank;
(b) the Reaffirmation Agreement 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;
(cd) the Guaranty duly executed by the parties thereto;
(e) a Due Diligence Certificate completed and executed by each Credit Party;
(df) 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, to the extent not previously provided to Agent, an agreement from the landlord for such property located waiving any landlord’s Lien in respect of personal property kept at the premises subject to such lease;
(eg) 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;
(fi) 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;
(gj) evidence of payment by the Borrower of all accrued and unpaid fees, costs and expenses (including to the extent then due and payable on the Effective Date, together with all attorney costs) 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);
(hk) 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 ( debtors, together with (i) copies of such financing statements)
, (iii) payoff letters evidencing repayment in full of all Debt required by Agent shall to be satisfied that existing financing 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 filed against Borrower naming Agent for and documents effective to evidence the benefit of Bank foregoing and (iii) such other Uniform Commercial Code termination statements 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 hereinAgent may reasonably request;
(jl) Tax, judgment and judgment 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 tax prior Liens or judgments on any of the collateral described in Collateral other than the Security DocumentsLiens permitted pursuant to Section 7.02; and
(km) if 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, an 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 AgreementAgreements, as referred to in the Security Documents duly executed by Chemung Canal Trust Company and any other the parties required under the Security Document, the applicable Credit Party and the Agent;
(lo) the delivery of the letter agreement Authorization Letter duly executed 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 frameBorrower;
(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;
(np) a certificate of the Secretary or Assistant Secretary of each Credit Party, dated the Effective Date, attesting to all corporate action taken by the Credit Party, including certified copies of all resolutions of its Board of Directors authorizing the execution, delivery and performance of the Loan Documents to which it is a party;
(oq) a certificate of the Secretary or Assistant Secretary of each Credit Party, dated the Effective Date, certifying the names and true signatures of the officers of the Credit Party authorized to sign the Loan Documents to which it is a party;
(pr) a certificate of a duly Authorized Officer of the Borrower, dated the Effective Date, stating that the representations and warranties in 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;
(qs) a 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;
(rt) 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 each Credit Party; and
(su) such other documents as the Agent or any Bank may reasonably request.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Hardinge Inc)
Documentary Conditions Precedent. The obligations of the Banks Lenders to make the Revolving Credit Loans constituting the initial borrowing hereunder and of the Issuing Lender to issue the Letters of Credit are subject to the condition precedent that the Administrative Agent shall have received on or before the date of such Loans Closing Date each of the following, in form and substance satisfactory to the Administrative Agent and its counsel:
(a) the Notes counterparts of this Agreement duly executed by each of Micro Warehouse, the Borrower for each BankSubsidiary Borrowers, the Subsidiary Guarantors, the Lenders and the Administrative Agent;
(b) the Reaffirmation Agreement Revolving Credit Notes duly executed by the parties thereto, together with all instruments, transfer powers and other items required to be delivered in connection therewithrespective Borrower;
(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 certificates of the Secretary or Assistant Secretary of each Credit Partyof the Obligors, dated the Effective Closing Date, (i) attesting to all corporate action taken by the Credit Partysuch Obligor, including certified copies of all resolutions of its Board of Directors authorizing the execution, delivery and performance of each of the Loan Facility Documents to which it is a party;
party and each other document to be delivered pursuant to this Agreement, (oii) a certificate of the Secretary or Assistant Secretary of each Credit Party, dated the Effective Date, certifying the names and true signatures of the officers of the Credit Party such Obligor authorized to sign the Loan Facility Documents to which it is a partyparty and the other documents to be delivered by such Obligor under this Agreement 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;
(pd) a certificate of a duly Authorized Officer authorized officer of each of the BorrowerObligors, dated the Effective Closing Date, stating that the representations and warranties in Article 5 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;
(qe) a favorable opinion certificates to the good standing or subsistence (or other analogous certificates) and certified copies of counsel for all charter documents with respect to each of 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 Obligors certified by the Secretary of State (or other appropriate Governmental Authority) of its jurisdiction of incorporation and evidence that each of the State of formation and of each Obligors is qualified as a foreign corporation in every other jurisdiction where in which it is required to be qualified to conduct business of the good standing of each Credit Party; and
(s) such other documents as the Agent or any Bank may reasonably request.does business;
Appears in 1 contract
Documentary Conditions Precedent. The obligations of the Banks to make the Loans constituting the borrowing hereunder initial Borrowing are subject to the condition precedent that the Agent Co-Agents and the Banks shall have received on or before the date of such Loans each of the following, in form and substance reasonably satisfactory to the Administrative Agent and its counsel:
(a) the Notes duly executed by the Borrower for each Bankin the form of Exhibits A-1 and A-2 hereto;
(b) the Reaffirmation Agreement Authorization Letter duly executed by the parties thereto, together with all instruments, transfer powers and other items required to be delivered Borrower in connection therewiththe form of Exhibit E hereto;
(c) a Due Diligence Certificate completed and executed by each Credit Partyfavorable opinion of counsel for the Borrower, dated the Closing Date, in substantially the form of Exhibit G;
(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 each Credit Partythe Borrower, dated the Effective Closing Date, attesting to all corporate action taken by the Credit PartyBorrower, including certified copies of all resolutions of its Board of Directors Directors, authorizing the execution, delivery and performance of the Loan Facility Documents to which it is a partyparty and each other document to be delivered pursuant to this Agreement and certifying true copies of the articles of incorporation (which shall also be certified by the secretary of state of the jurisdiction of its incorporation), by-laws and other organizational documents of the Borrower;
(oe) a certificate of the Secretary or Assistant Secretary of each Credit Partythe Borrower, dated the Effective Closing Date, certifying the names and true signatures of the officers of the Credit Party Borrower authorized to sign the Loan Facility Documents to which it is a partyparty and the other documents to be delivered by the Borrower under this Agreement, together with an updated chart setting forth the corporate structure of the Borrower;
(pf) 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 authorized officer of the Borrower, dated the Effective Closing Date, stating that that, to his or her knowledge, the representations and warranties in Article 5 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;
(qi) a favorable opinion of counsel for the Credit Parties, dated Environmental Indemnification duly signed by the Effective Date, Borrower in substantially the form of Exhibit E and as to such other matters as the Agent or any Bank may reasonably requestF hereto;
(rj) 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 certificate from a duly authorized officer certifying that Schedule 5.22 sets forth currently existing insurance policies covering each Subsidiary of the Borrower in compliance with this Agreement;
(n) a recently payoff letter and releases from Fleet National Bank, as Agent, and the Banks that are parties to the Borrower's Credit Agreement dated certificate as of December 29, 1994, in form and substance satisfactory to 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 each Credit PartyAdministrative Agent; and
(so) such other documents and instruments as the Administrative Agent or any Bank its counsel may reasonably requestrequest in connection with the execution of this Agreement and the other Facility Documents.
Appears in 1 contract
Sources: Credit Agreement (Nfo Worldwide Inc)
Documentary Conditions Precedent. The obligations obligation of the Banks Bank to make the Loans constituting the borrowing hereunder are is subject to the condition conditions precedent that the Agent Bank shall have received on or before the date of such Loans Borrowing each of the following, in form and substance satisfactory to the Agent Bank and its counsel:
(a) the Notes duly executed by the Borrower for each BankBorrowers;
(b) the Reaffirmation Security Agreement duly executed by the parties theretoBorrowers, together with (i) acknowledgment copies of the financing statements (UCC-1) duly filed under the Uniform Commercial Code of all instrumentsjurisdictions necessary or, transfer powers and other items required in the opinion of the Bank, desirable to be delivered 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 connection therewithall 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 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 each Credit PartyBorrower, dated the Effective Closing Date, attesting to all corporate action taken by the Credit Partysuch Borrower, including certified copies of all resolutions of its Board of Directors authorizing the execution, delivery and performance of the Loan Facility Documents to which it is a partyparty and each other document to be delivered pursuant to this Agreement and certifying copies of the Certificate of Incorporation and by-laws of such Borrower;
(od) a certificate of the Secretary or Assistant Secretary of each Credit PartyBorrower, dated the Effective Closing Date, certifying the names and true signatures of the officers of the Credit Party such Borrower authorized to sign the Loan Facility Documents to which it is a partyparty and the other documents to be delivered by such Borrower under this Agreement;
(pe) a certificate of a duly Authorized Officer authorized officer of the each Borrower, dated the Effective Closing Date, stating that the representations and warranties in Article 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;
(qf) an Environmental Indemnification Agreement duly signed by the Borrowers in form and substance satisfactory to the Bank;
(g) a certificate of good standing for each Borrower from the 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 Credit PartiesBorrowers, dated the Effective Closing Date, in substantially form and substance satisfactory to the form Bank;
(j) copies of Exhibit E all instruments evidencing any Subordinated Debt of any Borrower and as a satisfactory review of the same;
(k) evidence of the acquisition by Tridex of PSI on terms satisfactory to such the Bank in all respects;
(l) evidence of the issuance by Tridex of 714,000 shares stock of Tridex to ▇▇▇▇ ▇▇▇▇▇, 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% (plus deferred interest or PIK of not greater than 7%), with a bank or other matters as institutional lender;
(n) evidence of payment by Tridex to ▇▇▇▇ ▇▇▇▇▇ of $16,100,000 from available cash, representing a portion of the Agent 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 Bank may reasonably requestof their respective Subsidiaries since the date of the commitment letter;
(r) a recently dated certificate evidence of liability and property insurance of the Secretary of State 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 State of formation and of each foreign jurisdiction where it is required to be qualified to conduct business of the good standing of each Credit PartyBorrowers; and
(su) such other documents as evidence of the Agent or absence of any Bank may reasonably requestchange 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
Sources: Credit Agreement (Tridex Corp)
Documentary Conditions Precedent. The obligations of the Banks to make the Loans constituting the borrowing hereunder are subject to the condition precedent that the Agent shall have received on or before the date of such Loans each of the following, in form and substance satisfactory to the Agent and its counsel:
(a) the Notes duly executed by the Borrower for each BankBorrower;
(b) the Reaffirmation Agreement Security Documents duly executed by the 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 the Authorization Letter duly executed by each Credit Partythe Borrower;
(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 each Credit Partythe Borrower, dated the Effective Date, attesting to all corporate action taken by the Credit PartyBorrower, including certified copies of all resolutions of its Board of Directors authorizing the execution, delivery and performance of the Loan Facility Documents to which it is a partyparty and each other document to be delivered pursuant to this Agreement;
(oe) a certificate of the Secretary or Assistant Secretary of each Credit Partythe Borrower, dated the Effective Date, certifying the names and true signatures of the officers of the Credit Party Borrower authorized to sign the Loan Facility Documents to which it is a partyparty and the other documents to be delivered by the Borrower under this Agreement;
(pf) a certificate of a duly Authorized Officer authorized officer of the Borrower, dated the Effective Closing Date, stating that the representations and warranties in 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;
(qg) a favorable opinion of counsel for the Credit PartiesBorrower, dated the Effective Closing Date, in substantially the form of Exhibit E C and as to such other matters as the Agent or any Bank may reasonably request;
(rh) a recently dated certificate of the Secretary of State of the State of Borrower's formation and of each foreign jurisdiction where it is required as to be qualified to conduct business of the its good standing of each Credit Party; and
(s) such other documents as the Agent or any Bank may reasonably requeststanding.
Appears in 1 contract
Documentary Conditions Precedent. The obligations obligation of the Banks each Lender to make the Loans constituting the borrowing hereunder are its Advance is subject to the condition precedent that the Agent each Lender shall have received on or before the date day of such Loans 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 Agent and its counseleach Lender:
(a) The Notes, properly executed on behalf of the Notes duly executed by the Borrower for each Bank;Borrower.
(b) The Pledge Agreement, properly executed on behalf of the Reaffirmation Agreement duly executed by the parties thereto, together with all instruments, transfer powers and other items required to be delivered in connection therewith;Borrower.
(c) a Due Diligence Certificate completed and executed The Bonds, properly issued by each Credit Party;the Borrower.
(d) in the case of any leased real property on which any collateral described under any A certificate 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 secretary or assistant secretary 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) certifying 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 each Credit Party, dated the Effective Date, attesting to all corporate action taken by the Credit Party, including certified copies of all resolutions of its Board of Directors authorizing the execution, delivery and performance of the Loan Documents and other documents contemplated hereunder to which it the Borrower is a party;
(o) a certificate party have been duly approved by all necessary action of the Secretary or Assistant Secretary board of each Credit Partydirectors of the Borrower, dated and attaching true and correct copies of the Effective Dateapplicable resolutions granting such approval, (ii) certifying that attached to such certificate are true and correct copies of the articles of incorporation and bylaws of the Borrower, together with such copies, and (iii) certifying the names and true signatures of the officers of the Credit Party Borrower that are authorized to sign the Loan Documents to which it is and other documents contemplated hereunder, together with the true signatures of such officers. The Lenders may conclusively rely on such certificate until they shall receive a party;further certificate of the secretary or assistant secretary of the Borrower canceling or amending the prior certificate and submitting the signatures of the officers named in such further certificate.
(pe) a A certificate of a duly Authorized Officer good standing of the Borrower, dated the Effective Date, stating that the representations and warranties in 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;
(q) a 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 Borrower from the Secretary of State of the State of formation and Minnesota dated not more than ten days before such date.
(f) A signed copy of each foreign jurisdiction where it is an opinion of counsel for the Borrower, addressed to the Lenders substantially in the form of Exhibit E.
(g) All fees required to be qualified to conduct business paid as of the good standing of each Credit Party; anddate hereof pursuant to this Agreement or any Fee Letter.
(sh) such Such other documents as the Agent or any Bank the Required Lenders may reasonably requestdeem necessary or advisable in connection with the issuance of the Bonds.
Appears in 1 contract
Sources: Credit Agreement (Allete Inc)
Documentary Conditions Precedent. The obligations of the Remaining Banks to make New Loans hereunder and to purchase Old Loans from the Departing Banks under Section 4.04, the obligations of the Departing Banks to sell and assign their Old Loans constituting to the borrowing hereunder Remaining Banks under Section 4.04, and the effectiveness of this Agreement, are subject to the condition precedent that the Agent shall have received on or before the date of such Loans Effective Date (which shall not be later than August 15, 1997) each of the following, in form and substance satisfactory to the Agent and its counsel:
(a) the Notes duly executed by the Borrower for each BankBorrower;
(b) the Reaffirmation Agreement Authorization Letter duly executed by the parties thereto, together with all instruments, transfer powers and other items required to be delivered in connection therewithBorrower;
(c) a Due Diligence Certificate completed and the Pledge Agreements duly executed by each Credit PartyPledgor together with: (i) transfer of the Pledged Collateral by means of (A) in the case of Eligible Nextel Collateral, delivery of stock certificates with duly indorsed stock powers and (B) in the case of Primary Collateral, appropriate instructions to the relevant financial intermediary to transfer such Pledged Collateral into an account at Depositary Trust Company in the name of the Agent's nominee; (ii) custody agreements on the Agent's standard form duly executed by the Borrower and the Third Party Pledgors; (iii) Forms U-1 duly executed by the Borrower and the Third Party Pledgors; and (iv) such other documents with respect thereto as the Agent shall reasonably request;
(d) in the case of any leased real property on which any collateral described under any a certificate 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 Manager 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 other similar officer of each Credit PartyEagle River, dated the Effective Date, attesting to all corporate action taken by the Credit PartyBorrower and Eagle River, including certified copies of all resolutions of its Board of Directors action by their respective Managers authorizing the execution, delivery and performance of the Loan Facility Documents to which it is a partyparty and each other document to be delivered pursuant to this Agreement;
(oe) a certificate of the Manager of the Borrower and the Secretary or Assistant Secretary other similar officer of each Credit PartyEagle River, dated the Effective Date, certifying the names and true signatures of the officers of the Credit Party Borrower authorized to sign the Loan Facility Documents to which it is a partyparty and the other documents to be delivered by the Borrower under this Agreement;
(pf) a certificate of a duly Authorized Officer the Manager of the Borrower, dated the Effective Date, stating that the representations and warranties in 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;
(qg) a favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Credit PartiesBorrower, dated the Effective Date, in substantially the form of Exhibit D and as to such other matters as the Agent or any Bank may reasonably request;
(h) a favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, counsel for the Borrower, 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;
(ri) a recently favorable opinion of C. ▇▇▇▇▇ ▇▇▇▇▇▇, counsel for the Borrower, dated certificate the Effective Date, in substantially the form of the Secretary of State of the State of formation Exhibit F and of each foreign jurisdiction where it is required as to be qualified to conduct business of the good standing of each Credit Party; and
(s) such other documents matters as the Agent or any Bank may reasonably request;
(j) a favorable opinion of ▇▇▇▇▇▇▇ Coie, counsel for the ▇▇▇▇▇ ▇. ▇▇▇▇▇, dated the Effective Date, in substantially the form of Exhibit G and as to such other matters as the Agent or any Bank may reasonably request;
(k) the Nextel Confirmation and the Nextel Collateral Agreement, each dated the Effective Date and duly executed by the parties thereto;
(l) copies of the Purchase Agreements, the Borrower's Amended and Restated Certificate of Formation and the LLC Agreement, each as amended to and including the Effective Date, certified as true, correct and complete copies by a duly authorized officer of the Borrower;
(m) a favorable opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Agent, dated the Effective Date, in substantially the form of Exhibit H; and
(n) such dividend orders and notices of conversion with respect to the Nextel Collateral as the Agent may request consistent with the Pledge Agreements.
Appears in 1 contract
Documentary Conditions Precedent. The obligations execution and delivery of this Agreement by the Banks to make Lenders, the Loans constituting Agent, the borrowing hereunder Swingline Bank and the Issuing Bank are subject to the condition precedent that the Agent shall have received on or before the date of such Loans Closing Date each of the following, in form and substance satisfactory to the Agent and its counsel:
(a) the Syndicated Notes and the Swingline Note, duly executed by the Borrower for each BankBorrower;
(b) the Reaffirmation Agreement Authorization Letter, duly executed by the parties thereto, together with all instruments, transfer powers and other items required to be delivered in connection therewithBorrower;
(c) a Due Diligence Certificate completed and the SwissAm Guarantee, duly executed by each Credit PartySwissAm;
(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 each Credit Partythe Borrower, dated the Effective Closing Date, attesting to (i) all corporate action taken by the Credit PartyBorrower, including certified copies of all resolutions of its Board of Directors authorizing the execution, delivery and performance of the Loan Facility Documents to which it is a partyparty and each other document to be delivered pursuant to this Agreement, and (ii) a true and complete copy of its certificate of incorporation and by-laws;
(oe) a certificate of the Secretary or Assistant Secretary of each Credit Partythe Borrower, dated the Effective Closing Date, certifying the names and true signatures of the officers of the Credit Party Borrower authorized to sign the Loan Facility Documents to which it is a partyparty and the other documents to be delivered by the Borrower under this Agreement;
(pf) a certificate of a duly Authorized Officer authorized officer of the Borrower, dated the Effective Closing Date, stating that the representations and warranties in Article 5 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;
(qg) a 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 or Assistant Secretary of State SwissAm, dated the Closing Date, attesting to (i) all corporate action taken by SwissAm, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the State SwissAm Guarantee, and (ii) a true and complete copy of formation its certificate of incorporation and of each foreign jurisdiction where it is required to be qualified to conduct business of the good standing of each Credit Party; and
(s) such other documents as the Agent or any Bank may reasonably request.by-laws;
Appears in 1 contract
Sources: Credit Agreement (Movado Group Inc)
Documentary Conditions Precedent. The obligations of the Banks to make the initial Loans constituting (or to issue Letters of Credit) on or after the borrowing hereunder date hereof are subject to the condition conditions precedent that the Agent that:
(a) each Bank shall have received on or before the date of such Loans hereof each of the following, in form and substance reasonably satisfactory to the Agent such Bank and its counsel:
(ai) this Agreement and the Notes Note executed in favor of such Bank duly executed by the Borrower for each BankBorrower;
(b) the Reaffirmation Agreement duly executed by the 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;
(nii) a certificate of the Secretary or Assistant Secretary of the Borrower and each Credit Partyof the Guarantors, dated the Effective Closing Date, attesting to all corporate action taken by the Credit Partysuch entity, including certified copies of all resolutions of its Board of Directors authorizing the execution, delivery and performance of the Loan Facility Documents and each other document to which it is a partybe delivered pursuant to this Agreement, together with certified copies of the certificate or articles of incorporation and the by-laws of the Borrower and each of the Guarantors; and, such certificate shall state that the resolutions and corporate documents thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate;
(oiii) a certificate of the Secretary or Assistant Secretary of the Borrower and each Credit Partyof the Guarantors, dated the Effective Closing Date, certifying the names and true signatures of the officers of the Credit Party such entity authorized to sign the Loan Facility Documents and the other documents to which it is a partybe delivered by such entity under this Agreement;
(piv) a certificate of a duly Authorized Officer authorized officer of the Borrower, dated the Effective Closing Date, stating that the representations and warranties in Article 5 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;
(qv) a favorable Guarantees, duly executed by each Guarantor;
(vi) an opinion of counsel for the Credit PartiesBorrower and Guarantors, dated the Effective Closing Date, in substantially the form of Exhibit E and as to such other matters as the Agent or any Bank may reasonably requestC;
(rvii) a recently dated certificate 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 Secretary Borrower and its Subsidiaries as of State February 2, 1996, and consolidated income statements and statements of cash flows of the State Borrower and its Subsidiaries for the fiscal year then ended, all prepared in accordance with GAAP, together with the unqualified opinion thereon of formation 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 foreign jurisdiction where it is required 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 be qualified to conduct 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 good standing 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 each Credit Partywhich 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
(sxi) such other documents 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, Rivk▇▇, ▇▇dl▇▇ & ▇rem▇▇, ▇▇us 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 Bank may document delivered in connection herewith; and
(g) all legal matters in connection with this financing shall be reasonably requestsatisfactory to the Banks and their counsel.
Appears in 1 contract
Sources: Revolving Credit Agreement (Genovese Drug Stores Inc)
Documentary Conditions Precedent. The obligations of the Banks to make the Loans constituting the borrowing hereunder initial Borrowing are subject to the condition precedent that the Agent shall have received on or before the date of such Loans each of the following, in form and substance satisfactory to the Agent and its counsel:
(a) the Notes duly executed by the Borrower for each BankBorrower;
(b) the Reaffirmation Agreement Authorization Letter, in the form of Exhibit 4.01(b) duly executed by the parties thereto, together with all instruments, transfer powers and other items required to be delivered in connection therewithBorrower;
(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 each Credit Partythe Borrower, dated the Effective Closing Date, attesting to all corporate action taken by the Credit PartyBorrower, including certified copies of all resolutions of its Board of Directors authorizing the execution, delivery and performance of the Loan Facility Documents and each other document to which it is a partybe delivered pursuant to this Agreement;
(od) a certificate of the Secretary or Assistant Secretary of each Credit Partythe Borrower, dated the Effective Closing Date, certifying the names and true signatures of the officers of the Credit Party Borrower authorized to sign the Loan Facility Documents and the other documents to which it is a partybe delivered by the Borrower under this Agreement;
(pe) a certificate of a duly Authorized Officer authorized officer of the Borrower, dated the Effective Closing Date, stating that the representations and warranties in 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;
(qf) a favorable opinion of counsel for the Credit PartiesBorrower, dated the Effective Closing Date, in substantially the form of Exhibit E 4.01(f) and as to such other matters as the Agent or any Bank may reasonably request;
(rg) a recently dated certificate of Borrower's chief executive officer or treasurer, in the Secretary form of State of Exhibit 4.01(g), to the State of formation effect that the Insurance Company Loan Documents have been executed and of each foreign jurisdiction where it is required delivered and are in full force and effect and that Borrower has closed the Insurance Company Financing in accordance with the Insurance Company Loan Documents, all advances scheduled to be qualified made on or before the Closing Date having been made;
(h) a favorable opinion of counsel for Pillsbury, dated the Closing Date, in substantially the form of Exhibit 4.01(h), with respect to conduct business the matters set forth in such Exhibit;
(i) the transactions contemplated pursuant to the Pillsbury Asset Purchase Agreement to be completed prior to the Closing Date shall have been completed and that agreement, along with the other Pillsbury Documents, shall be in full force and effect;
(j) the Security Agreement, in the form of Exhibit 4.01(j) ( the good standing "Security Agreement"), duly executed by Borrower and the Agent, as the Collateral Agent named therein, along with the Consent and Agreement, in the form attached to the Security Agreement (the "Consent and Agreement"), the financing statements and any other documents required pursuant thereto, duly executed by all parties as required therein;
(k) the Intercreditor Agreement, in the form of Exhibit 4.01(k) (the "Intercreditor Agreement"), duly executed by each Credit PartyBank, each Purchaser under the Insurance Company Note Agreement and the Agent, as the Collateral Agent thereunder, and acknowledged by Borrower; and
(sl) such other documents as an Agreement Regarding Subordination, in the Agent or any Bank may reasonably request.form of Exhibit 4.01(l) (the "Pillsbury Subordination Agreement"), duly executed by Pillsbury, by the Agent, on behalf of the Banks, and by each Purchaser under the Insurance Company Note Agreement; and
(m) an Agreement Relating to 11 U.S.C. ss. 1111(b), in the form of Exhibit 4.01(m) (the "ss. 1111
Appears in 1 contract
Documentary Conditions Precedent. The obligations obligation of the Banks Lender to make the Loans constituting the borrowing hereunder are initial Loan under this Agreement is subject to the condition precedent that the Agent Borrower shall have received delivered to the Lender, on or before prior to the date of such Loans each of Closing Date, the following, in form and substance reasonably satisfactory to the Agent and its counselLender:
(a) the Notes Note for the account of the Lender duly executed by the Borrower for each Bankin the principal amount of the Commitment;
(b) the Reaffirmation Security Agreement duly executed by the parties thereto, together with all instruments, transfer powers and other items required to be delivered in connection therewithBorrower;
(c) a Due Diligence Certificate completed and the AAI Guaranty duly executed by each Credit PartyGuarantor;
(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 leaseNCM Guaranty duly executed by NCM;
(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 recordAAI Pledge Agreement duly executed by AAI;
(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 policiesNCM Pledge Agreement duly executed by NCM;
(g) payment by the Borrower of stock certificates representing all fees, costs and expenses (including attorney costs) of the Agent to the extent invoiced prior to the Effective Dateauthorized, plus such additional amounts issued and outstanding capital stock 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 FLICA, NFL and the AgentBorrower, as applicable (with undated stock powers signed in blank);
(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)Receivables Purchase Agreement duly executed and delivered by the Borrower and NCM;
(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 hereinFinancing Statements;
(j) Taxconfirmations of pledge executed by AAI, NCM, FLICA, NFL 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; andBorrower;
(k) if required by an intercreditor subordination agreement among the AgentLender, an Account Control CSFB and AAI and its Subsidiaries (the “Intercreditor Subordination Agreement”), as referred to substantially 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 Agentform attached as Exhibit I hereto;
(l) the delivery a certificate of the letter agreement Secretary or Assistant Secretary of the Borrower, dated the Closing Date, attesting on behalf of the Borrower to all corporate action taken by the 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 other document to be delivered by the Borrower pursuant to this Agreement, and attesting to the Agent whereby names and true signatures of the officers of the Borrower shall agree authorized to deliver certain delineated items 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 Bank on a post closing basis completeness and within a specified time framecorrectness of the attached Articles of Incorporation and Bylaws of the Borrower;
(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 certificate of the Credit Parties described in Secretary or Assistant Secretary of AAI, dated the Intellectual Property Security AgreementClosing 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 AAI Guaranty and the AAI Pledge Agreement and each other document to be delivered by AAI hereunder, and attesting to the names and true signatures of the officers of AAI authorized to sign the AAI Guaranty, the AAI Pledge Agreement and the other documents to be delivered by AAI hereunder and to the completeness and correctness of the attached Articles of Incorporation and Bylaws of AAI;
(n) a certificate of the Secretary or Assistant Secretary of each Credit PartyEligible MGA, dated the Effective Closing Date, attesting on behalf of such Eligible MGA to all corporate action taken by the Credit Partysuch Eligible MGA, including certified copies of all resolutions of its Board of Directors authorizing the execution, delivery and performance of the Loan Documents Receivables Purchase Agreement and each other document to which it is a party;
(o) a certificate of be delivered by the Secretary or Assistant Secretary of each Credit PartyEligible MGA hereunder, dated the Effective Date, certifying and attesting to the names and true signatures of the officers of the Credit Party Eligible MGA authorized to sign the Loan Documents Receivables Purchase Agreement and the other documents to which it be delivered by the Eligible MGA hereunder and to the completeness and correctness of the attached Articles of Incorporation and Bylaws of such MGA;
(o) 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 partyMaterially Adverse Effect;
(p) a certificate of a duly Authorized Officer of the Borrower, dated the Effective Date, stating that the representations and warranties in Article 5 are true and correct on such date as though made on and good standing for AAI as of such a recent date by the Secretary of State of its jurisdiction of incorporation and that no event has occurred and each state where AAI, by the nature of its business, is continuing which constitutes required to qualify to do business, except where the failure to be so qualified could not reasonably be expected to have a Default or Event of DefaultMaterially 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 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 for to the Credit Parties, Obligors and the Insurance Affiliate dated the Effective 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 Exhibit E a Senior Officer of the Eligible MGA party thereto certifying that such Master General Agent Contract is a true, correct and as complete 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 such the Lender and the Lender shall have received any and all other matters as information and documents with respect to each Obligor and the Agent or any Bank Insurance Affiliate, which it may reasonably request;
(rv) searches of the Uniform Commercial Code, tax lien, real property and other records as Lender may require;
(w) a recently Compliance Certificate, dated certificate the Closing Date, confirming compliance with the covenants set forth in Sections 6.1, 6.4, 6.8, 6.9, 6,10, and 6.12;
(x) a copy of the Secretary of State executed agreement between CSFB and AAI waiving any default under any agreement between CSFB and AAI resulting from the execution, delivery and performance 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 each Credit PartyLoan Documents; and
(sy) such other documents as the Agent or any Bank may reasonably requestWaiver of Jury Trial and Notice of Final Agreement executed by all parties thereto.
Appears in 1 contract
Documentary Conditions Precedent. The obligations of the Banks to make the Loans constituting (including, without limitation, issuing Letters of Credit) on or after the borrowing hereunder date hereof are subject to the condition conditions precedent that the Agent that:
(a) each Bank shall have received on or before the date of such Loans hereof each of the following, in form and substance reasonably satisfactory to the Agent such Bank and its counsel:
(ai) this Agreement and the Revolving Credit Notes duly executed by the Borrower for each BankBorrower;
(b) the Reaffirmation Agreement duly executed by the 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;
(nii) a certificate of the Secretary or Assistant Secretary of the Borrower and each Credit Partyof the Guarantors, dated the Effective Closing Date, attesting to all corporate action taken by the Credit Partysuch entity, including certified copies of all resolutions of its Board of Directors authorizing the execution, delivery and performance of the Loan Facility Documents and each other document to which it is a partybe delivered pursuant to this Agreement, together with certified copies of the certificate or articles of incorporation and the by-laws of the Borrower and each of the Guarantors; and, such certificate shall state that the resolutions and corporate documents thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate;
(oiii) a certificate of the Secretary or Assistant Secretary of the Borrower and each Credit Partyof the Guarantors, dated the Effective Closing Date, certifying the names and true signatures of the officers of the Credit Party such entity authorized to sign the Loan Facility Documents and the other documents to which it is a partybe delivered by such entity under this Agreement;
(piv) a certificate of a duly Authorized Officer authorized officer of the Borrower, dated the Effective Closing Date, stating that the representations and warranties in Article 5 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;
(qv) Guarantees, duly executed by each Guarantor;
(vi) a favorable opinion of counsel for the Credit PartiesBorrower and Guarantors, dated the Effective Closing Date, in substantially the form of Exhibit E and as to such other matters as the Agent or any Bank may reasonably requestE;
(rvii) a recently dated certificate 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 Secretary Borrower and its Subsidiaries as at December 30, 1995, and consolidated and consolidating income statements and statements of State cash flows of the State Borrower and its Subsidiaries for the fiscal year then ended, all prepared in accordance with GAAP, together with the unqualified opinion thereon of formation BDO ▇▇▇▇▇▇▇, 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 foreign jurisdiction where it is prepared by or under the supervision of the chief financial officer of the Borrower in accordance with GAAP;
(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 Banks in full the Up Front Fee and all other fees required to be qualified paid hereunder or in connection herewith, and to conduct business the Agent in full all accrued fees and expenses of the good standing Agent in connection with the preparation, execution and delivery of each 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 PartyAgreement" 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
(se) such other documents as the Agent Borrower shall provide 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 be material and adverse to the Borrower or any Bank may reasonably requestGuarantor, 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 obligations Commitment of the Banks Bank to make the Revolving Loans constituting the borrowing hereunder are under this Agreement is subject to the condition precedent that the Agent Borrower shall have received on or before the date of such Loans each of delivered the following, in form and substance satisfactory to the Agent and its counselBank:
(a) a Revolving Note for the Notes account of the Bank duly executed by the Borrower for each BankBorrower;
(b) the Reaffirmation Agreement duly executed by the 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 each Credit Partythe Borrower, dated the Effective Closing Date, attesting on behalf of the Borrower to all corporate action taken by the Credit PartyBorrower, including certified copies of all resolutions of its Board of Directors authorizing the execution, delivery and performance of this Agreement, the Loan Documents Revolving Note and each other document to which it is a party;
(o) a certificate of the Secretary or Assistant Secretary of each Credit Partybe delivered pursuant to this Agreement, dated the Effective Date, certifying and attesting to the names and true signatures of the officers of the Credit Party Borrower authorized to sign this Agreement, the Loan Documents Revolving Note, and the other documents to which it is a partybe delivered by the Borrower under this Agreement;
(pc) a certificate of a duly Authorized Senior Officer of the Borrower, dated the Effective Closing Date, stating certifying on behalf of the Borrower that (i) the representations and warranties in Article 5 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;
(qd) 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 certificate or similar instrument from the 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;
(g) 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 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 for to the Credit PartiesBorrower, dated the Effective Closing Date, in substantially the form set forth in Exhibit D hereto;
(k) a certificate of Exhibit E a Senior Officer of the Borrower certifying that each consent, license, approval and as notice required in connection with the execution, delivery, performance, validity and enforceability of this Agreement and each other document and instrument required to such be delivered in connection herewith and the consummation of the Acquisition is in full force and effect;
(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 matters as information and documents with respect to the Agent or any Bank Borrower which it may reasonably request;
(rm) a recently dated certificate payment to the Bank of the Secretary facility fee in the amount of State $60,000;
(n) payment to Day, ▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel to the Bank, of the State of formation its legal fees and of each foreign jurisdiction where it is required to be qualified to conduct business of the good standing of each Credit Partydisbursement; and
(so) such other documents a true and complete copy of the Acquisition Agreement (and any amendments) as in effect on the Agent or any Bank may reasonably requestClosing Date, certified by a Senior Officer of the Borrower.
Appears in 1 contract
Sources: Credit Agreement (Donegal Group Inc)
Documentary Conditions Precedent. The obligations of the Banks -------------------------------- Initial Lenders to make the Loans constituting the borrowing hereunder initial borrowings are subject to the condition precedent that the Agent shall have received on or before the date of such Loans Effective Date each of the following, following documents shall have been delivered to the Agent in form and substance satisfactory to the Agent and its counsel, and each of the following actions shall have been performed to the satisfaction of the Agent and its counsel:
(a) The Agent shall have received the Notes Facility Documents duly executed by each of the Borrower for each Bankparties thereto, and in full force and effect;
(b) the Reaffirmation Agreement duly executed by the 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) The 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) have received a certificate of the Secretary Clerk or Assistant Secretary Clerk of each Credit Partythe Borrower, dated the Effective Date, attesting to all corporate action taken by the Credit PartyBorrower, including certified copies of all resolutions of its Board of Directors authorizing the execution, delivery and performance of the Loan Facility Documents to which it the Borrower is a party;
(o) a certificate of party and each other document to be executed and delivered by the Secretary or Assistant Secretary of each Credit Party, dated the Effective Date, Borrower pursuant to this Agreement and certifying the names and true signatures of the officers of the Credit Party Borrower authorized to sign the Loan Facility Documents and the other documents to be executed and delivered by the Borrower under this Agreement;
(c) The Agent shall have received a certificate of the Secretary or Assistant Secretary (or equivalent) of the Subsidiary Guarantor, dated the Effective Date, attesting to all corporate action taken by the Subsidiary Guarantor, including resolutions of their Board of Directors (or equivalent) authorizing the execution, delivery and performance of the Facility Documents to which it the Subsidiary Guarantor is a partyparty and each other document to be executed and delivered by the Subsidiary Guarantor pursuant to this Agreement and certifying the names and true signatures of the officers of the Subsidiary Guarantor authorized to sign the Facility Documents and the other documents to be executed and delivered by the Subsidiary Guarantor under this Agreement;
(pd) The Agent shall have received a certificate of a duly Authorized Officer authorized officer of the Borrower, Borrower dated the Effective Date, stating that the representations and warranties in 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;
(qe) The Agent shall have received (i) a favorable opinion of counsel for the Credit PartiesBorrower and the Subsidiary Guarantor, dated the Effective Date, in substantially the form of Exhibit E H hereto, and covering such other matters --------- as to the Agent or any Lender may reasonably request, and (ii) a favorable opinion of local Irish counsel for Advanced Component Technologies Limited regarding the pledge of the Borrower's equity in Advanced Component Technologies Limited and covering such other matters as the Agent or any Bank Lender may reasonably request;
(rf) The Agent shall have received a recently dated certificate of the Secretary of State a duly authorized officer of the State of formation and of each foreign jurisdiction where it is required Borrower certifying as to be qualified to conduct business the solvency of the good standing Borrower and its Subsidiaries after giving effect to the funding of each Credit Party; andthe initial Loans.
(sg) such other documents as The Agent shall have received insurance certificates in form satisfactory to the Agent evidencing casualty, all-risk, product liability and other insurance having coverages and issued by insurance companies satisfactory to the Agent and naming the Agent as a lender's loss payee and (as appropriate) an additional insured.
(h) The Agent shall have received an initial Borrowing Base Certificate, remittance, debit and credit reports, and a statement of accounts in a form acceptable to the Agent with respect to the Borrower and consistent with the requirements of (S) 6.09 hereof, dated as of not more than 30 days prior to the date of the Loan;
(i) The Agent shall be satisfied that the Borrower has on the Effective Date and will continue to have on the Banking Day subsequent to the Effective Date, in each case after giving effect to the funding of the initial Revolving Credit Loans, Availability equal to or exceeding $6,000,000;
(j) The Borrower shall have delivered to the Agent evidence reasonably satisfactory to the Agent that the Leased Premises do not pose a violation of any Environmental Laws or any Bank may reasonably request.liability to the Borrower under any Environmental Laws;
(k) The Agent shall be satisfied with its due diligence review of the Borrower and its Subsidiaries, including, but not limited to, satisfactory review by the Agent of the projections of the Borrower and its Subsidiaries;
(l) The Agent shall be satisfied with its review of (i) estimated closing balance sheets for the Borrower and its Subsidiaries (including all Foreign Subsidiaries), prepared in accordance with GAAP, and (ii) consolidated and consolidating monthly profit and loss statements, balance sheets and cash flow projections for the Borrower and its Subsidiaries (including all Foreign Subsidiaries), prepared in accordance with GAAP, for the 12-month period from the Closing Date forward, and on an annual basis for Fiscal Years ending December 31, 1999 and December 31, 2000;
(m) The Borrower shall have delivered to the Agent a schedule of all fixed assets of the Credit Parties with a value greater than or equal to $250,000 (which schedule shall identify the net book value of such assets and identify the amounts of all liens and the identities of lien holders);
Appears in 1 contract
Documentary Conditions Precedent. The obligations Commitment of the Banks -------------------------------- Bank to make the Revolving Loans constituting the borrowing hereunder are under this Agreement is subject to the condition precedent that the Agent Borrower shall have received on or before the date of such Loans each of delivered the following, in form and substance satisfactory to the Agent and its counselBank:
(a) a a Revolving Note for the Notes account of the Bank duly executed by the Borrower for each BankBorrower;
(b) the Reaffirmation Agreement duly executed by the 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) b a certificate of the Secretary or Assistant Secretary of each Credit Partythe Borrower, dated the Effective Closing Date, attesting on behalf of the Borrower to all corporate action taken by the Credit PartyBorrower, including certified copies of all resolutions of its Board of Directors authorizing the execution, delivery and performance of this Agreement, the Loan Documents Revolving Note, the Pledge Agreement and each other document to which it is a party;
(o) a certificate of the Secretary or Assistant Secretary of each Credit Partybe delivered pursuant to this Agreement, dated the Effective Date, certifying and attesting to the names and true signatures of the officers of the Credit Party Borrower authorized to sign this Agreement, the Loan Documents Revolving Note, the Pledge Agreement and the other documents to which it is a partybe delivered by the Borrower under this Agreement;
(p) c a certificate of a duly Authorized Senior Officer of the Borrower, dated the Effective Closing Date, stating certifying on behalf of the Borrower that (i) the representations and warranties in Article 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;
(q) d a favorable opinion certificate of counsel for a Senior Officer of the Credit PartiesBorrower, dated the Effective Date, substantially in substantially the form of Exhibit E and as C, which certificate shall include information required --------- to such other matters as establish that the Agent or any Bank may reasonably requestBorrower will be in compliance with the covenants set forth in this Agreement, after giving effect to the transactions contemplated herein;
(r) e a recently dated 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 State Borrower, by the nature of formation and of each foreign jurisdiction where it its business, is required to qualify to do business, except where the failure to be so qualified to conduct 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 certificate of good standing for USBENEFITS as of each Credit Party; a recent date by the Secretary of State of its jurisdiction of incorporation and
(s) such other documents as the Agent or any Bank may reasonably request., if different, its principal place of business;
Appears in 1 contract
Sources: Credit Agreement (Centris Group Inc)
Documentary Conditions Precedent. The obligations commitment of the Banks Bank to make the Loans constituting the borrowing hereunder are under this Agreement is subject to the condition precedent that the Agent Borrower shall have received on or before the date of such Loans each of delivered the following, in form and substance satisfactory to the Agent and its counselBank:
(a) the Notes Note, for the account of the Bank duly executed by the Borrower for each BankBorrower;
(b) the Reaffirmation Agreement duly executed by the parties thereto, together with all instruments, transfer powers and other items required to be delivered in connection therewithNegative Pledge Agreement;
(c) a Due Diligence Certificate completed certificate of the Secretary or Assistant Secretary of the Borrower, dated the Closing Date, attesting on behalf of the Borrower to all corporate action taken by the Borrower, including resolutions of its Board of Directors authorizing the execution, delivery and executed performance of this Agreement, the Note, the Security Agreement, the Negative Pledge Agreement and each other 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 each Credit Partythe Borrower under this Agreement;
(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 each Credit PartySubsidiary, dated the Effective Closing Date, attesting on behalf of such Subsidiary to all corporate action taken by the Credit Partysuch Subsidiary, including certified copies of all resolutions of its Board of Directors authorizing the execution, delivery and performance of the Loan Documents Guaranty Agreement, the Subsidiary Security Agreement, the Subsidiary Financing Statements and each other document to which it is a party;
(o) a certificate of the Secretary or Assistant Secretary of each Credit Partybe delivered pursuant to this Agreement, dated the Effective Date, certifying and attesting to the names and true signatures of the officers of the Credit Party such Subsidiary authorized to sign the Loan Documents Guaranty Agreement, the Subsidiary Security Agreement, the Subsidiary Financing Statements and the other documents to which it is a party;be delivered by the Borrower under this Agreement
(pe) a certificate of a duly Authorized Senior Officer of the Borrower, dated the Effective Closing Date, stating certifying on behalf of the Borrower that (i) the representations and warranties in Article 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;
(qf) copies of (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 (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 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 such Subsidiary of all taxes owed;
(i) a favorable opinion of C▇▇▇▇▇▇▇ & L▇▇▇▇▇▇▇, counsel for to the Credit PartiesBorrower and each Subsidiary, dated the Effective Closing Date, in substantially the form of 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;
(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 matters as information and documents with respect to the Agent or any Bank Borrower which it may reasonably request;
(rn) a recently dated certificate payment to Day, B▇▇▇▇ & H▇▇▇▇▇ 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 Secretary of State of Collateral (as such term is set forth in the State of formation Security Agreement and of each foreign jurisdiction where it is required the Subsidiary Security Agreement) in form and substance satisfactory to be qualified to conduct business of the good standing of each Credit PartyBank and its special counsel; and
(sq) such other documents 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 5▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and more particularly described in that certain lease dated October 10, 1996 by and between D▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and the Borrower, as the Agent or any Bank may reasonably requestamended.
Appears in 1 contract
Sources: Credit Agreement (Lincoln Snacks Co)
Documentary Conditions Precedent. The obligations obligation of the Banks Bank to make the Loans constituting the borrowing hereunder are is subject to the condition conditions precedent that the Agent Bank shall have received on or before the date of such Loans Borrowing each of the following, in form and substance satisfactory to the Agent Bank and its counsel:
(a) the Notes Note duly executed by the Borrower for each BankBorrower;
(b) the Reaffirmation Security Agreement duly executed by the parties theretoBorrower, together with (i) acknowledgment copies of the financing statements (UCC-1) duly filed under the Uniform Commercial Code of all instrumentsjurisdictions necessary or, transfer powers and other items required in the opinion of the Bank, desirable to be delivered 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 connection therewithall 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 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 each Credit Partythe Borrower, dated the Effective Closing Date, attesting to all corporate action taken by the Credit PartyBorrower, including certified copies of all resolutions of its Board of Directors authorizing the execution, delivery and performance of the Loan Facility Documents and each other document to which it is a partybe delivered pursuant to this Agreement and certifying copies of the Certificate of Incorporation and by-laws of the Borrower;
(od) a certificate of the Secretary or Assistant Secretary of each Credit Partythe Borrower, dated the Effective Closing Date, certifying the names and true signatures of the officers of the Credit Party Borrower authorized to sign the Loan Facility Documents and the other documents to which it is a partybe delivered by the Borrower under this Agreement;
(pe) a certificate of a duly Authorized Officer authorized officer of the Borrower, dated the Effective Closing Date, stating that the its representations and warranties in Article 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;
(qf) an Environmental Indemnification Agreement duly signed by the Borrower in form and substance satisfactory to the Bank;
(g) a certificate of good standing for the 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 Credit PartiesBorrower, dated the Effective Closing Date, in substantially the form of Exhibit E D and as to such other matters as the Agent or any Bank may reasonably request;
(rj) a recently dated certificate Subordination Agreement, in form acceptable to the Bank, duly executed by the Borrower and FAvS together with copies of all instruments evidencing any Subordinated Debt of the Secretary of State Borrower and a satisfactory review of the State same;
(k) evidence of formation and of each foreign jurisdiction where it is required to be qualified to conduct business no material adverse change in the business, management, operations, properties, prospects or condition (financial or otherwise) of the good standing Borrower since the date of each Credit Partythe commitment letter;
(l) a Borrowing Base Certificate and a recent Receivables aging of the Borrower;
(m) appropriate landlord waivers and consents; and
(sn) such other documents as the Agent or any Bank may reasonably requestevidence of insurance required by this Agreement.
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Documentary Conditions Precedent. The obligations of the Banks to make the Loans constituting the borrowing hereunder are subject to the condition precedent that the Agent shall have received on or before the date of such Loans each of the following, in form and substance satisfactory to the Agent and its counsel:
(a) the Notes duly executed by the Borrower for each BankBorrower;
(b) the Reaffirmation Agreement Security Documents duly executed by the 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 the Authorization Letter duly executed by each Credit Partythe Borrower;
(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 each Credit Partythe Borrower, dated the Effective Date, attesting to all corporate action taken by the Credit PartyBorrower, including certified copies of all resolutions of its Board of Directors authorizing the execution, delivery and performance of the Loan Facility Documents to which it is a partyparty and each other document to be delivered pursuant to this Agreement;
(oe) a certificate of the Secretary or Assistant Secretary of each Credit Partythe Borrower, dated the Effective Date, certifying the names and true signatures of the officers of the Credit Party Borrower authorized to sign the Loan Facility Documents to which it is a partyparty and the other documents to be delivered by the Borrower under this Agreement;
(pf) a certificate of a duly Authorized Officer authorized officer of the Borrower, dated the Effective Closing Date, stating that the representations and warranties in 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;
(qg) a favorable opinion of counsel for the Credit PartiesBorrower, dated the Effective Closing Date, in substantially the form of Exhibit E EXHIBIT C and as to such other matters as the Agent or any Bank may reasonably request;
(rh) a recently dated certificate of the Secretary of State of the State of Borrower's formation and of each foreign jurisdiction where it is required as to be qualified to conduct business of the its good standing of each Credit Party; and
(s) such other documents as the Agent or any Bank may reasonably requeststanding.
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Documentary Conditions Precedent. The obligations obligation of the Banks Bank to make the Loans Revolving Credit Loan constituting the initial borrowing hereunder are is subject to the condition precedent that the Agent Bank shall have received on or before the date of such Loans Revolving Credit Loan each of the following, in form and substance satisfactory to the Agent Bank and its counsel:
(a) the Notes Note duly executed by the Borrower for each BankBorrower;
(b) the Reaffirmation Agreement Guaranty duly executed by the parties thereto, together with all instruments, transfer powers and other items required to be delivered in connection therewitheach Guarantor;
(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 Credit PartyGuarantor, dated the Effective Closing Date, attesting to all corporate action taken by the Credit PartyBorrower and each Guarantor, including certified copies of all resolutions of its Board of Directors authorizing the execution, delivery and performance of the Loan Facility Documents to which it is a partyparty 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;
(od) a certificate of the Secretary or Assistant Secretary of each Credit Partythe Borrower and Guarantor, dated the Effective Closing Date, certifying the names and true signatures of the officers of the Credit Party Borrower and Guarantor authorized to sign the Loan Facility Documents to which it is a partyparty and the other documents to be delivered by the Borrower and Guarantor under this Agreement;
(pe) a certificate of a duly Authorized Officer authorized officer of the BorrowerBorrower and Guarantor, dated the Effective Closing Date, stating that the representations and warranties in Article 5 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;
(qf) a favorable opinion "long form" certificate of counsel for good standing of the Credit Parties, dated the Effective Date, in substantially the form of Exhibit E Borrower and as to such other matters as the Agent or any Bank may reasonably requestGuarantor;
(rg) a recently dated certificate of the Secretary of State of Security Agreements duly executed by the State of formation Borrower and of each foreign jurisdiction where it is required to be qualified to conduct business of the good standing of each Credit Party; and
Guarantor together with (s) such other documents as the Agent or any Bank may reasonably request.a)
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