Conditions Precedent to the Effectiveness of this Agreement. The effectiveness of this Agreement is subject to satisfaction of the conditions precedent that the Agent shall have received, on the Effective Date, the following, each dated the Effective Date unless otherwise indicated, in form and substance satisfactory to the Agent and (except for the Notes, if any) in sufficient copies for each Lender: (a) This Agreement, duly executed and delivered by the Borrower, in form and substance satisfactory to the Agent and the Lenders. (b) A Note to the order of each Lender who requests a Note pursuant to Section 2.1(c). (c) Certified copies of (i) the resolutions of the Board of Directors of each Loan Party approving the Loan Documents to which it is a party, and (ii) all documents evidencing other necessary corporate action and required governmental and third party approvals, licenses and consents with respect to each Loan Document and the transactions contemplated thereby. (d) A copy of the articles or certificate of incorporation of each Loan Party certified as of a recent date by the Secretary of State of the state of incorporation of such Loan Party, together with certificates of such official attesting to the good standing of each such Loan Party, and a copy of the certificate of incorporation and the By-Laws of each Loan Party certified as of the Effective Date by the Secretary or an Assistant Secretary of each such Loan Party. (e) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of each officer of such Loan Party who has been authorized to execute and deliver any Loan Document or other document required hereunder to be executed and delivered by or on behalf of such Loan Party. (f) Certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, listing all effective financing statements which name any Loan Party (under its present name and or previous name) as debtor, together with copies of such other financing statements (none of which shall cover the Collateral purported to be covered by such Amended and Restated Security Agreement except as otherwise permitted by the Loan Documents); and (g) Evidence that the insurance required by the terms of the Collateral Documents and by Section 6.4 is in full force and effect. (h) Executed copies of financing statements in appropriate form for filing under the Uniform Commercial Code of each jurisdiction as may be necessary to perfect the security interests purported to be created by the Collateral Documents. (i) Favorable opinions of counsel to the Loan Parties, in substantially the form of EXHIBIT J, and as to such other matters as any Lender or Issuer through the Agent may reasonably request, together with a copy of the opinions rendered by such firms with respect to the enforceability of the Securitization Documents and related matters accompanied by a letter to the effect that the Agent, the Lenders and the Issuer may rely thereon. (j) A certificate, signed by a Responsible Officer of the Borrower, stating that each of the conditions specified in Sections 3.2(a), (b), (c) and (d) and 3.3
Appears in 1 contract
Conditions Precedent to the Effectiveness of this Agreement. The effectiveness of this Agreement is and any Conduit Lender's and any Secondary Lender’s obligations hereunder shall be subject to satisfaction of the conditions precedent that the Program Agent shall have received, received (or waived receipt thereof) on or before the Effective Date, initial Borrowing Date the following, each dated the Effective Date (unless otherwise indicated, ) in form and substance reasonably satisfactory to the Program Agent and (except for the Notes, if any) in sufficient copies for each Lenderthe Conduit Lenders and the Secondary Lenders:
(a) This Agreement, each of the Program Documents duly executed and delivered by the Borrowerparties thereto, which shall each be in form full force and substance satisfactory to the Agent and the Lenders.effect;
(b) A Note to the order of each Lender who requests a Note pursuant to Section 2.1(c).Prospectus;
(c) Certified the signed opinions of counsel to the Borrower and the Adviser addressed to the Program Agent, each Conduit Lender and each Secondary Lender as to such matters as the Program Agent shall have reasonably requested;
(d) if requested by any Conduit Lender or any Secondary Lender pursuant to Section 2.03 on or prior to the Closing Date, an Advance Note duly executed and completed by the Borrower to such Conduit Lender or such Secondary Lender, as applicable;
(e) copies of all Governmental Authorizations, material Private Authorizations and Governmental Filings, if any, which may be required to be made or obtained by the Borrower in connection with the transactions contemplated by this Agreement;
(f) a certificate of the Secretary or Assistant Secretary of each of the Borrower and the Adviser certifying (i) as to its certificate of incorporation or declaration of trust, as applicable and by-laws, (ii) as to the resolutions of the its Board of Directors or Board of Trustees, as applicable, approving this Agreement and the other Program Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Program Documents to which it is a party are true and correct in all material respects, and (iv) the incumbency and specimen signature of each Loan Party approving of its officers authorized to execute the Loan Program Documents to which it is a party, and ;
(iig) all documents evidencing other necessary corporate action and required governmental and third party approvals, licenses and consents with respect to each Loan Document copies of proper financing statements naming the Borrower as debtor and the transactions Program Agent as secured party to be filed under the UCC in all jurisdictions that the Program Agent may deem necessary or desirable in order to perfect the Program Agent’s interests in the Pledged Collateral contemplated thereby.by this Agreement;
(dh) A copy copies of proper termination financing statements, if any, necessary to release all Adverse Claims of any Person in the Assets of the articles or certificate of incorporation of each Loan Party certified as of a recent date Borrower previously granted by the Secretary of State Borrower;
(i) completed requests for information, dated on or before the date of the state of incorporation of such Loan Party, together with certificates of such official attesting to the good standing of each such Loan Party, and a copy of the certificate of incorporation and the By-Laws of each Loan Party certified as of the Effective Date by the Secretary or an Assistant Secretary of each such Loan Party.
(e) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of each officer of such Loan Party who has been authorized to execute and deliver any Loan Document or other document required hereunder to be executed and delivered by or on behalf of such Loan Party.
(f) Certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reportsinitial Borrowing Date, listing all effective financing statements which filed in the jurisdictions referred to in subsection (g) above that name any Loan Party the Borrower (under its present name and or any previous name) as debtor, together with copies of such other financing statements (none of which shall cover the Collateral purported to be covered by such Amended and Restated Security Agreement except as otherwise permitted by the Loan Documents)statements; and
(gj) Evidence that a pro forma Investor Report, which shall evidence compliance with the insurance required by Borrowing Base Test, the Asset Coverage Test and certain other terms of the Collateral Program Documents and by Section 6.4 is in full force and effect.
(h) Executed copies of financing statements in appropriate form for filing under the Uniform Commercial Code of each jurisdiction as may be necessary to perfect the security interests purported to be created by the Collateral Documents.
(i) Favorable opinions of counsel after giving effect to the Loan Parties, in substantially the form initial borrowing of EXHIBIT J, and as to such other matters as any Lender or Issuer through the Agent may reasonably request, together with a copy of the opinions rendered by such firms with respect to the enforceability of the Securitization Documents and related matters accompanied by a letter to the effect that the Agent, the Lenders and the Issuer may rely thereonAdvances under this Agreement.
(j) A certificate, signed by a Responsible Officer of the Borrower, stating that each of the conditions specified in Sections 3.2(a), (b), (c) and (d) and 3.3
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Invesco Prime Income Trust)
Conditions Precedent to the Effectiveness of this Agreement. The effectiveness of this Agreement is subject to satisfaction the fulfillment of the following conditions precedent that the precedent:
(a) The Administrative Agent shall have received, on or before the Effective Closing Date, the following, each dated the Effective Date unless otherwise indicated, in form and substance satisfactory to the Agent each Lender (except where otherwise specified below) and (except for the any Promissory Notes, if any) in sufficient copies for each Lender:
(a) This Agreement, duly executed and delivered by the Borrower, in form and substance satisfactory to the Agent and the Lenders.
(b) A Note to the order of each Lender who requests a Note pursuant to Section 2.1(c).
(ci) Certified copies of (i) the resolutions of the Board of Directors Directors, or of the Executive Committee of the Board of Directors, of the Borrower, each Guarantor and each other Grantor (each a "LOAN PARTY") authorizing each such Loan Party to enter into each Loan Party approving the Loan Documents Document to which it is, or is to be, a party, and (ii) of all documents evidencing other necessary corporate action and required governmental and third party approvalsGovernmental Approvals, licenses and consents if any, with respect to each such Loan Document and the transactions contemplated therebyDocument.
(d) A copy of the articles or certificate of incorporation of each Loan Party certified as of a recent date by the Secretary of State of the state of incorporation of such Loan Party, together with certificates of such official attesting to the good standing of each such Loan Party, and a copy of the certificate of incorporation and the By-Laws of each Loan Party certified as of the Effective Date by the Secretary or an Assistant Secretary of each such Loan Party.
(eii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and names, true signatures and incumbency of each officer (A) the officers of such Loan Party who has been authorized to execute sign the Loan Documents to which it is, or is to be, a party, and deliver any Loan Document or the other document required hereunder documents to be executed delivered hereunder and delivered thereunder and (B) the representatives of such Loan Party authorized to sign notices to be provided under the Loan Documents to which it is, or is to be, a party, which representatives shall be acceptable to the Administrative Agent.
(iii) Copies of the Certificate of Incorporation (or comparable charter document) and by-laws of each Loan Party, together with all amendments thereto, certified by the Secretary or on behalf an Assistant Secretary of each such Loan Party.
(fiv) Certified copies Good Standing Certificates (or other similar certificate) for each of Requests for Information or Copies (Form UCC-11)the Loan Parties, or equivalent reports, listing all effective financing statements which name any issued by the Secretary of State of the jurisdiction of organization of each such Loan Party as of a recent date.
(under its present name v) The Guaranty, duly executed by each Guarantor.
(vi) The Pledge Agreements, duly executed by the Borrower and or previous nameeach Grantor, as applicable.
(vii) as debtorA certified copy of Schedule II hereto, in form and substance reasonably satisfactory to the Administrative Agent setting forth:
(A) all Project Finance Debt of the Consolidated Subsidiaries, together with copies the Borrower's Ownership Interest in each such Consolidated Subsidiary, as of such other financing statements (none of which shall cover the Collateral purported to be covered by such Amended and Restated Security Agreement except as otherwise permitted by the Loan Documents)June 30, 2002; and
(gB) Evidence that the insurance required by the terms debt (as such term is construed in accordance with GAAP) of the Collateral Documents and by Section 6.4 is in full force and effectLoan Parties as of June 30, 2002.
(hviii) Executed copies A certificate, executed by a duly authorized officer of financing statements the Borrower, confirming that attached thereto is a true, correct and complete copy of the Enterprises Credit Agreement, as in appropriate form for filing under effect on the Uniform Commercial Code of each jurisdiction as may be necessary to perfect the security interests purported to be created by the Collateral DocumentsClosing Date.
(iix) Favorable opinions of:
(A) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq., Deputy General Counsel of the Borrower and counsel to for the other Loan Parties, in substantially the form of EXHIBIT J, Exhibit C and as to such other matters as any Lender or Issuer the Required Lenders, through the Administrative Agent, may reasonably request; and
(B) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Loan Parties in substantially the form of Exhibit D-1 and as to such other matters as the Administrative Agent may reasonably request; and
(C) Skadden, together with a copy of the opinions rendered by such firms with respect Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the enforceability Loan Parties in substantially the form of Exhibit D-2 and as to such other matters as the Securitization Documents and related matters accompanied by a letter to the effect that the Agent, the Lenders and the Issuer Administrative Agent may rely thereonreasonably request.
(jb) A certificate, signed by The following statements shall be true and the Administrative Agent shall have received a Responsible Officer certificate of a duly authorized officer of the Borrower, dated the Closing Date and in sufficient copies for each Lender stating that each that:
(i) the representations and warranties set forth in Section 7.01 of this Agreement are true and correct on and as of the conditions specified Closing Date as though made on and as of such date,
(ii) no event has occurred and is continuing that constitutes a Default or an Event of Default, and
(iii) all Governmental Approvals necessary in Sections 3.2(a)connection with the Loan Documents and the transactions contemplated thereby have been obtained and are in full force and effect, (b)and all third party approvals necessary or advisable in connection with the Loan Documents and the transactions contemplated thereby have been obtained and are in full force and effect, other than filings necessary to create or perfect security interests in the Collateral or as may be required under applicable energy, antitrust or securities laws in connection with the exercise of remedies with respect to certain Collateral.
(c) The Borrower shall have paid all fees under or referenced in Section 2.02 and all expenses referenced in Section 11.04(a), in each case to the extent then due and payable.
(d) The Administrative Agent shall have received evidence satisfactory to it that all financing statements relating to the Collateral have been completed for filing or recording, and 3.3all certificates representing capital stock included in the Collateral have been delivered to the Collateral Agent (with duly executed stock powers).
Appears in 1 contract
Conditions Precedent to the Effectiveness of this Agreement. The effectiveness of the amendment and restatement of the Existing Credit Agreement as set forth in this Agreement is shall be subject to satisfaction of the conditions precedent that each Program Document be in full force and effect and that the Agent shall have received, on the Effective Date, received the following, each dated the Effective Date (unless otherwise indicated, ) in form and substance satisfactory to the Agent and (except for the Notes, if any) in sufficient copies for each Lender:
(a) This Agreement, duly executed and delivered by the Borrower, in form and substance reasonably satisfactory to the Agent and the Secondary Lenders parties hereto in sufficient copies for the Lenders and the Secondary Lenders.:
(bi) A Note duly executed copies of this Agreement from each of the Borrower, the Lenders, the Secondary Lenders and the Agent;
(ii) duly executed copies of the Control Agreement from each of the Borrower, the Agent and the Custodian;
(iii) duly executed copies of the Letter Agreement from the Advisor and the Agent;
(iv) duly executed copies of the Fee Letter from the Borrower and the Agent;
(v) duly executed copies of the Custodial Agreement from the Borrower and the Custodian;
(vi) the signed opinions of counsel to the order Borrower and the Advisor addressed to each Secured Party as to such matters as the Agent shall have reasonably requested;
(vii) a certificate of each Lender who requests a Note the Secretary or Assistant Secretary of the Borrower certifying that the Prospectus, as delivered pursuant to Section 2.1(c).3.01 above and the Investment Policies and Restrictions have not been modified since the Closing Date;
(cviii) Certified copies a certificate of the Secretary or Assistant Secretary of each of the Borrower and the Advisor certifying (i) as to its declaration of trust, articles, by-laws or other organizational documents, as applicable, (ii) as to the resolutions of its Board of Directors or Board of Trustees, as applicable, approving this Agreement and the other Program Documents and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Program Documents are true and correct, and (iv) the incumbency and specimen signature of each of its officers authorized to execute the Program Documents;
(ix) all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, which may be required in connection with the transactions contemplated by the Program Documents;
(x) proper amendments to financing statements filed naming the Borrower as debtor and the Agent as secured party, under the UCC in all jurisdictions that the Agent may deem necessary or desirable in order to perfect the Agent's first priority perfected interest in the Assigned Collateral;
(xi) the results of a recent search by a Person reasonably satisfactory to the Agent of all UCC lien filings with respect to the Borrower, and such results shall be satisfactory to the Agent;
(xii) from the Borrower and the Advisor such other instruments, certificates and documents as the Agent shall have reasonably requested, all in form and substance reasonably satisfactory to the Agent; and
(xiii) evidence reasonably satisfactory to the Agent that (i) the resolutions Custodian shall have established the Collateral Account (as defined in the Control Agreement) and the Existing Custodian shall have transferred all of the Board of Directors of each Loan Party approving Assigned Collateral and cash on deposit or to the Loan Documents Collateral Account (as defined in the Existing Control Agreement) to which it is a partythe Custodian for deposit in the Collateral Account maintained under the Control Agreement, and (ii) all documents evidencing other necessary corporate action and required governmental and third party approvals, licenses and consents with respect to each Loan Document the Existing Control Agreement and the transactions contemplated therebyExisting Custodial Agreement shall have each been terminated.
(d) A copy of the articles or certificate of incorporation of each Loan Party certified as of a recent date by the Secretary of State of the state of incorporation of such Loan Party, together with certificates of such official attesting to the good standing of each such Loan Party, and a copy of the certificate of incorporation and the By-Laws of each Loan Party certified as of the Effective Date by the Secretary or an Assistant Secretary of each such Loan Party.
(e) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of each officer of such Loan Party who has been authorized to execute and deliver any Loan Document or other document required hereunder to be executed and delivered by or on behalf of such Loan Party.
(f) Certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, listing all effective financing statements which name any Loan Party (under its present name and or previous name) as debtor, together with copies of such other financing statements (none of which shall cover the Collateral purported to be covered by such Amended and Restated Security Agreement except as otherwise permitted by the Loan Documents); and
(g) Evidence that the insurance required by the terms of the Collateral Documents and by Section 6.4 is in full force and effect.
(h) Executed copies of financing statements in appropriate form for filing under the Uniform Commercial Code of each jurisdiction as may be necessary to perfect the security interests purported to be created by the Collateral Documents.
(i) Favorable opinions of counsel to the Loan Parties, in substantially the form of EXHIBIT J, and as to such other matters as any Lender or Issuer through the Agent may reasonably request, together with a copy of the opinions rendered by such firms with respect to the enforceability of the Securitization Documents and related matters accompanied by a letter to the effect that the Agent, the Lenders and the Issuer may rely thereon.
(j) A certificate, signed by a Responsible Officer of the Borrower, stating that each of the conditions specified in Sections 3.2(a), (b), (c) and (d) and 3.3
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Highland Floating Rate Advantage Fund)
Conditions Precedent to the Effectiveness of this Agreement. The effectiveness of this Agreement is and the Conduit Lender's and any Secondary Lender's obligations hereunder shall be subject to satisfaction of the conditions precedent that the Program Agent shall have received, received (or waived receipt thereof) on or before the Effective Date, initial Borrowing Date the following, each dated the Effective Date (unless otherwise indicated, ) in form and substance reasonably satisfactory to the Program Agent and (except for the Notes, if any) Secondary Lenders in sufficient copies for each Lenderthe Conduit Lender and the Secondary Lenders:
(a) This Agreement, each of the Program Documents (other than the Loan Documents) duly executed and delivered by the Borrowerparties thereto, which shall each be in form full force and substance satisfactory to the Agent and the Lenders.effect;
(b) A Note to the order of each Lender who requests a Note pursuant to Section 2.1(c).Prospectus;
(c) Certified the signed opinions of counsel to the Borrower and the Adviser addressed to the Program Agent, the Conduit Lender and each Secondary Lender as to such matters as the Program Agent shall have reasonably requested;
(d) if requested by the Conduit Lender or any Secondary Lender pursuant to Section 2.03 on or prior to the Closing Date, an Advance Note duly executed and completed by the Borrower to the Conduit Lender or such Secondary Lender, as applicable;
(e) copies of all Governmental Authorizations, material Private Authorizations and Governmental Filings, if any, which may be required to be made or obtained by the Borrower in connection with the transactions contemplated by this Agreement;
(f) a certificate of the Secretary or Assistant Secretary of each of the Borrower and the Adviser certifying (i) as to its certificate of incorporation or declaration of trust, as applicable and by-laws, (ii) as to the resolutions of the its Board of Directors or Board of Trustees, as applicable, approving this Agreement and the other Program Documents (other than the Loan Documents) to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Program Documents (other than the Loan Documents) to which it is a party are true and correct in all material respects, and (iv) the incumbency and specimen signature of each Loan Party approving of its officers authorized to execute the Program Documents (other than the Loan Documents Documents) to which it is a party, and ;
(iig) all documents evidencing other necessary corporate action and required governmental and third party approvals, licenses and consents with respect to each Loan Document copies of proper financing statements naming the Borrower as debtor and the transactions Program Agent as secured party to be filed under the UCC in all jurisdictions that the Program Agent may deem necessary or desirable in order to perfect the Program Agent's interests in the Pledged Collateral contemplated thereby.by this Agreement;
(dh) A copy copies of proper termination financing statements, if any, necessary to release all Adverse Claims of any Person in the Assets of the articles or certificate of incorporation of each Loan Party certified as of a recent date Borrower previously granted by the Secretary of State Borrower;
(i) completed requests for information, dated on or before the date of the state of incorporation of such Loan Party, together with certificates of such official attesting to the good standing of each such Loan Party, and a copy of the certificate of incorporation and the By-Laws of each Loan Party certified as of the Effective Date by the Secretary or an Assistant Secretary of each such Loan Party.
(e) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of each officer of such Loan Party who has been authorized to execute and deliver any Loan Document or other document required hereunder to be executed and delivered by or on behalf of such Loan Party.
(f) Certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reportsinitial Borrowing Date, listing all effective financing statements which filed in the jurisdictions referred to in subsection (g) above that name any Loan Party the Borrower (under its present name and or any previous name) as debtor, together with copies of such other financing statements (none of which shall cover the Collateral purported to be covered by such Amended and Restated Security Agreement except as otherwise permitted by the Loan Documents)statements; and
(gj) Evidence that a pro forma Investor Report, which shall evidence compliance with the insurance required by Borrowing Base Test, the Asset Coverage Test and certain other terms of the Collateral Program Documents and by Section 6.4 is in full force and effect.
(hother than the Loan Documents) Executed copies of financing statements in appropriate form for filing under the Uniform Commercial Code of each jurisdiction as may be necessary to perfect the security interests purported to be created by the Collateral Documents.
(i) Favorable opinions of counsel after giving effect to the Loan Parties, in substantially the form initial borrowing of EXHIBIT J, and as to such other matters as any Lender or Issuer through the Agent may reasonably request, together with a copy of the opinions rendered by such firms with respect to the enforceability of the Securitization Documents and related matters accompanied by a letter to the effect that the Agent, the Lenders and the Issuer may rely thereonAdvances under this Agreement.
(j) A certificate, signed by a Responsible Officer of the Borrower, stating that each of the conditions specified in Sections 3.2(a), (b), (c) and (d) and 3.3
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Van Kampen Senior Loan Fund)
Conditions Precedent to the Effectiveness of this Agreement. The effectiveness of this Agreement is subject to satisfaction the receipt by IBM Credit of, or waiver in writing by IBM Credit of compliance with, the following conditions precedent:
(A) this Agreement executed and delivered by each Loan Party and IBM Credit;
(B) a favorable opinion of counsel for Loan Parties in substantially the form of Attachment H;
(C) a certificate of the conditions precedent that secretary or an assistant secretary of each Loan Party, substantially in the Agent form and substance of Attachment I hereto, certifying that, among other items, (i) each Loan Party is duly organized under the laws of the State of its organization or incorporation and has its principal place of business as stated therein, (ii) each Loan Party is registered to conduct business in specified states and localities, (iii) true and complete copies of the articles of incorporation, or corresponding organizational documents, as applicable, and by-laws of each Loan Party are delivered therewith, together with all amendments and addenda thereto as in effect on the date thereof, (iv) the resolution as stated in the certificate is a true, accurate and compared copy of the resolution adopted by each Loan Party's Board of Directors or, if a Loan Party is a limited liability company, by such Loan Party's authorized members, authorizing the execution, delivery and performance of this Agreement and each Other Document executed and delivered in connection herewith, and (v) the names and true signatures of the officers of each Loan Party authorized to sign this Agreement and the Other Documents;
(D) certificates dated as of a recent date from the Secretary of State or other appropriate authority evidencing the good standing of each Loan Party in the jurisdiction of its organization and in each other jurisdiction where the ownership or lease of its property or the conduct of its business requires it to qualify to do business;
(E) a certified copy of the fully executed Daisytek Stock Purchase Agreement by and among Daisytek, PFS, and Borrower in form and substance satisfactory to IBM Credit in its sole discretion;
(F) the Borrower shall have receivedacquired all of the stock of the BSD Companies and BSD shall have merged into the Borrower with the Borrower being the surviving entity;
(G) a certified copy of the Merger Documents in form and substance satisfactory to IBM Credit in its sole discretion;
(H) an opinion of counsel in form and substance satisfactory to IBM Credit and from counsel satisfactory to it which opinion shall include, on without limitation, an opinion hat (i) the Effective Daisytek Stock Purchase Agreement and related documents are legal, valid, binding and enforceable obligations of the parties thereto, (ii) the Acquired Accounts are free of all liens, security interests and encumbrances and (iii) IBM Credit has a first perfected priority security interest in such Acquired Accounts;
(I) the consolidated Financial Statements of Borrower and BSD as of Closing Date in form and substance satisfactory to IBM Credit in its sole discretion;
(J) evidence satisfactory to IBM Credit that Loan Parties have paid any amounts necessary to IBM so that once the IBM Payment is made, pursuant to Section 2.3(B) upon the Closing Date, all accounts receivable owed to IBM by Daisytek and BSD ("IBM Liability") shall be indefeasibly paid in full;
(K) fully executed Supplement to Master Distributor Agreements in form and substance satisfactory to IBM Credit in its sole discretion and evidence that all payments required thereunder have been indefeasibly paid in full;
(L) copies of all approvals and consents from any Person, in each case in form and substance satisfactory to IBM Credit, which are required to enable each Loan Party to authorize, or required in connection with, (a) the followingexecution, delivery or performance of this Agreement and each dated of the Effective Date unless otherwise indicatedOther Documents, and (b) the legality, validity, binding effect or enforceability of this Agreement and each of the Other Documents;
(M) IBM Credit shall have received evidence satisfactory to it that (i) PFS shall have made or caused to be made an equity contribution to the Borrower in immediately available funds in an amount equal to Seven Hundred Fifty Thousand Dollars ($750,000), (ii) IFP shall have made or caused to be made an equity contribution to the Borrower in immediately available funds in an amount equal to Two Hundred Fifty Thousand Dollars ($250,000) and (iii) PFS shall have made or caused to be made a loan to the Borrower in immediately available funds in an amount equal to Six Million Dollars ($6,000,000) and such loan shall be subordinated to the Obligations pursuant to the notes payable subordination agreement referred to in (G) below;
(N) notes payable subordination executed by PFS in favor of IBM Credit in form and substance satisfactory to IBM Credit in its sole discretion;
(O) Subordinated Demand Note executed by Borrower and endorsed payable to IBM Credit;
(P) collateralized guaranty executed by each of Holdings and PFS in favor of IBM Credit in form and substance satisfactory to IBM Credit in its sole discretion;
(Q) corporate guaranty executed by PFSweb in favor of IBM Credit in form and substance satisfactory to IBM Credit in its sole discretion;
(R) the pledge by Holdings of one hundred percent (100%) of the stock of its Domestic Subsidiaries and sixty-five percent (65%) of the stock of each of its Subsidiaries incorporated outside the USA (the "Holdings Stock Pledge Agreement") along with undated stock powers and stock certificates with respect to the shares of stock pledged in form and substance satisfactory to IBM Credit in its sole discretion;
(S) Borrower Stock Pledge Agreement executed by Borrower in form and substance satisfactory to IBM Credit in its sole discretion pursuant to which Borrower shall pledge the stock in BSD (Canada), Inc. and Supplies Distributors of Canada, Inc.;
(T) documentation satisfactory to IBM Credit in its sole discretion evidencing Borrower's right, title and interest to accounts receivable represented by invoices under the name of PFS;
(U) fully-executed Transaction Documents, satisfactory to IBM Credit in its sole discretion;
(V) evidence that Borrower is a wholly-owned Subsidiary of Holdings;
(W) delivery of a copy of the PFS Agreement which agreement shall be in form and substance satisfactory to IBM Credit in its sole discretion;
(X) acknowledgment executed by PFS pursuant to Section 9-313(C) of the U.C.C. which acknowledgment shall be in form and substance satisfactory to IBM Credit in its sole discretion;
(Y) a lockbox agreement executed by Borrower and each Bank, in form and substance satisfactory to the Agent and (except for the Notes, if any) in sufficient copies for each Lender:IBM Credit;
(aZ) This Agreement, duly a blocked account agreement executed by Borrower and delivered by the Borrower, each Bank in form and substance satisfactory to IBM Credit;
(AA) IBM's consent to the Agent Borrower assigning all of its right, title, and interest in and to the IBM Agreement as Collateral to secure the payment of all Obligations of Borrower to IBM Credit;
(BB) the Notice of Assignment as defined in Section 9.3(A)(ii) executed by PFS in form and substance satisfactory to IBM Credit in its sole discretion;
(CC) absence of any material adverse change in any Loan Party's or any Guarantor's condition (financial or otherwise), its operations, assets, income and/or prospects;
(DD) UCC-1 financing statements for each jurisdiction reasonably requested by IBM Credit executed by each of Holdings, PFS and the Lenders.
(b) A Note to the order of each Lender who requests a Note pursuant to Section 2.1(c).
(c) Certified copies of (i) the resolutions of the Board of Directors of each Loan Party approving the Loan Documents to which it is a party, and (ii) all documents evidencing other necessary corporate action and required governmental and third party approvals, licenses and consents with respect to each Loan Document and the transactions contemplated thereby.
(d) A copy of the articles or certificate of incorporation of each Loan Party certified Borrower as of a recent date by the Secretary of State of the state of incorporation of such Loan Party, together with certificates of such official attesting to the good standing of each such Loan Party, and a copy of the certificate of incorporation and the By-Laws of each Loan Party certified as of the Effective Date by the Secretary or an Assistant Secretary of each such Loan Party.
(e) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of each officer of such Loan Party who has been authorized to execute and deliver any Loan Document or other document required hereunder to be executed and delivered by or on behalf of such Loan Party.
(f) Certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, listing all effective financing statements which name any Loan Party (under its present name and or previous name) as debtor, together with copies of such other financing statements (none of which shall cover the Collateral purported to be covered by such Amended and Restated Security Agreement except as otherwise permitted by the Loan Documents); and
(g) Evidence that the insurance required by the terms of the Collateral Documents and by Section 6.4 is in full force and effect.
(h) Executed copies of financing statements in appropriate form for filing under the Uniform Commercial Code of each jurisdiction as may be necessary to perfect the security interests purported to be created contemplated by Section 4.1 of this Agreement and contemplated under the Collateral Documents.collateralized guaranties;
(iEE) Favorable opinions control or other agreements for all other deposit accounts, letter-of-credit rights, electronic chattel paper, inventory in the possession of counsel to third parties;
(FF) all securities and commodities accounts containing investment property described in Attachment B;
(GG) the Loan Partiesstatements, certificates, documents, instruments, financing statements, agreements and information set forth in substantially the form of EXHIBIT J, Attachment A and as to such other matters as any Lender or Issuer through the Agent may reasonably request, together with Attachment B;
(HH) a certified copy of the opinions rendered by organization chart of Loan Parties;
(II) IBM Credit shall have received evidence satisfactory to it that Supplies Distributors is a registered D.B.A. name of the Borrower; and
(JJ) all such firms other statements, certificates, documents, instruments, financing statements, agreements and other information with respect to the enforceability of the Securitization Documents and related matters accompanied contemplated by a letter to the effect that the Agent, the Lenders and the Issuer may rely thereonthis Agreement as IBM Credit shall have reasonably requested.
(j) A certificate, signed by a Responsible Officer of the Borrower, stating that each of the conditions specified in Sections 3.2(a), (b), (c) and (d) and 3.3
Appears in 1 contract
Sources: Inventory and Working Capital Financing Agreement (Pfsweb Inc)
Conditions Precedent to the Effectiveness of this Agreement. The effectiveness This Agreement shall become effective when and only when the following conditions precedent shall have been satisfied (the “Second Restatement Effective Date”):
(a) the Administrative Agent shall have received counterparts of this Agreement is subject to satisfaction executed by each Borrower, all of the conditions precedent that Lenders and each Agent and all of the Agent shall have received, on the Effective Date, the followingfollowing documents, each dated the Effective Date such document (unless otherwise indicatedspecified) dated as of the date of this Agreement (as amended and restated) and in sufficient copies for each Lender, in form and substance satisfactory to the Agent and (except for the Notes, if any) in sufficient copies for each LenderAdministrative Agent:
(ai) This a certificate of the Secretary or an Assistant Secretary or General Counsel of each Borrower certifying the names and true signatures of the officers of such Borrower authorized to sign this Agreement, the New Notes and the other documents to be delivered hereunder;
(ii) A Master Assignment and Acceptance Agreement, duly executed by each Borrower, each Purchasing Lender and delivered by each Transferor Lender (each as defined in the Master Assignment and Acceptance Agreement) thereunder;
(iii) certified copies of the estatutos sociales of each Borrower;
(iv) certified copies of powers-of-attorney, in form and substance satisfactory to the Administrative Agent, granted to the persons acting on behalf of each Borrower in connection with the execution and delivery of this Agreement, the New Notes, and the Master Assignment and Acceptance Agreement;
(v) a schedule in form and substance satisfactory to the Lenders setting forth the assets of each Borrower on which there is any Lien securing obligations of any Person;
(vi) a favorable opinion of the General Counsel for Grupo Imsa, S.A. de C.V. in substantially the form of Exhibit E of this Agreement;
(vii) a favorable opinion of Shearman & Sterling LLP, United States counsel for the Administrative Agent, in form and substance satisfactory to the Agents;
(viii) a favorable opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇, S.C., Mexican counsel for the Administrative Agent in substantially the form of Exhibit F to this Agreement;
(ix) a letter from the Process Agent, dated the Second Restatement Effective Date, agreeing to act as Process Agent and certified copies of powers-of-attorney, in form and substance satisfactory to the Lenders, granted by each Borrower to CT Corporation System to act as Process Agent; and
(x) such other certificates and other documents as the Lenders through the Administrative Agent may reasonably request.
(b) A Note The Administrative Agent shall have received new Notes payable to the order of each Lender who requests a Note pursuant Lender, respectively, in the amount of its Commitment and maturing on March 15, 2009 (the “New Notes”), in each case in form and substance satisfactory to Section 2.1(c)it.
(c) Certified copies On the Second Restatement Effective Date the following statements shall be true and the Administrative Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of each Borrower, dated the Second Restatement Effective Date, stating that:
(i) the resolutions The representations and warranties contained in Section 4.01 are true and correct on and as of the Board Second Restatement Effective Date, other than any such representations or warranties that, by their terms, refer to a specific date other than the Second Restatement Date, in which case, as of Directors of each Loan Party approving the Loan Documents to which it is a party, and such specific date.
(ii) all documents evidencing other necessary corporate action No Default has occurred and required governmental and third party approvals, licenses and consents with respect to each Loan Document and the transactions contemplated therebyis continuing.
(d) A copy There shall have occurred no Material Adverse Change since December 31, 2002 or any material adverse change since December 31, 2002 in the loan syndication markets affecting Mexican facilities of the articles or certificate same type as this Agreement. The effectiveness of incorporation of each Loan Party certified as of a recent date by this Agreement is conditioned upon the Secretary of State accuracy of the state of incorporation of such Loan Party, together with certificates of such official attesting to factual matters described herein. Until the good standing of each such Loan Party, and a copy occurrence of the certificate of incorporation and Second Restatement Effective Date, the By-Laws of each Loan Party certified as of the Effective Date by the Secretary or an Assistant Secretary of each such Loan Party.
(e) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of each officer of such Loan Party who has been authorized to execute and deliver any Loan Document or other document required hereunder to be executed and delivered by or on behalf of such Loan Party.
(f) Certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, listing all effective financing statements which name any Loan Party (under its present name and or previous name) as debtor, together with copies of such other financing statements (none of which shall cover the Collateral purported to be covered by such First Amended and Restated Credit and Security Agreement except as otherwise permitted by the Loan Documents); and
(g) Evidence that the insurance required by the terms of the Collateral Documents and by Section 6.4 is in full force and effect.
(h) Executed copies of financing statements in appropriate form for filing under the Uniform Commercial Code of each jurisdiction as may be necessary to perfect the security interests purported shall continue to be created by the Collateral Documentsin effect, as in effect prior to its amendment and restatement hereby.
(i) Favorable opinions of counsel to the Loan Parties, in substantially the form of EXHIBIT J, and as to such other matters as any Lender or Issuer through the Agent may reasonably request, together with a copy of the opinions rendered by such firms with respect to the enforceability of the Securitization Documents and related matters accompanied by a letter to the effect that the Agent, the Lenders and the Issuer may rely thereon.
(j) A certificate, signed by a Responsible Officer of the Borrower, stating that each of the conditions specified in Sections 3.2(a), (b), (c) and (d) and 3.3
Appears in 1 contract
Sources: Credit and Security Agreement (Grupo Imsa Sa De Cv)
Conditions Precedent to the Effectiveness of this Agreement. The effectiveness of this Agreement is subject to satisfaction the fulfillment of the following conditions precedent that the precedent:
(a) The Administrative Agent shall have received, on or before the Effective Closing Date, the following, each dated the Effective Date unless otherwise indicated, in form and substance satisfactory to the Agent each Lender (except where otherwise specified below) and (except for the any Promissory Notes, if any) in sufficient copies for each Lender:
(a) This Agreement, duly executed and delivered by the Borrower, in form and substance satisfactory to the Agent and the Lenders.
(b) A Note to the order of each Lender who requests a Note pursuant to Section 2.1(c).
(ci) Certified copies of (i) the resolutions of the Board of Directors, or of the Executive Committee of the Board of Directors (or persons performing similar functions), of each Borrower, each Guarantor and each other Grantor (each a "LOAN PARTY") authorizing each such Loan Party approving the to enter into each Loan Documents Document to which it is, or is to be, a party, and (ii) of all documents evidencing other necessary corporate or other action and required governmental and third party approvalsGovernmental Approvals, licenses and consents if any, with respect to each such Loan Document and the transactions contemplated therebyDocument.
(d) A copy of the articles or certificate of incorporation of each Loan Party certified as of a recent date by the Secretary of State of the state of incorporation of such Loan Party, together with certificates of such official attesting to the good standing of each such Loan Party, and a copy of the certificate of incorporation and the By-Laws of each Loan Party certified as of the Effective Date by the Secretary or an Assistant Secretary of each such Loan Party.
(eii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and names, true signatures and incumbency of each officer (A) the officers of such Loan Party who has been authorized to execute sign the Loan Documents to which it is, or is to be, a party, and deliver any Loan Document or the other document required hereunder documents to be executed delivered hereunder and delivered thereunder and (B) the representatives of such Loan Party authorized to sign notices to be provided under the Loan Documents to which it is, or is to be, a party, which representatives shall be acceptable to the Administrative Agent.
(iii) Copies of the Certificate of Incorporation and by-laws (or comparable constitutive documents) of each Loan Party, together with all amendments thereto, certified by the Secretary or on behalf an Assistant Secretary of each such Loan Party.
(fiv) Certified copies Good Standing Certificates (or other similar certificate) for each of Requests for Information or Copies (Form UCC-11)the Loan Parties, or equivalent reports, listing all effective financing statements which name any issued by the Secretary of State of the jurisdiction of organization of each such Loan Party as of a recent date.
(under its present name and or previous namev) as debtorThe Guaranty, together with copies of such other financing statements duly executed by each Guarantor.
(none of which shall cover the Collateral purported to be covered by such Amended and Restated Security Agreement except as otherwise permitted vi) The Pledge Agreements, duly executed by the Loan Documents)Borrowers and each Grantor, as applicable.
(vii) A certified copy of Schedule I hereto, in form and substance reasonably satisfactory to the Administrative Agent setting forth:
(A) all Project Finance Debt of the Company and the Consolidated Subsidiaries, as of September 30, 2003; and
(gB) Evidence that the insurance required by the terms debt (as such term is construed in accordance with GAAP) of the Collateral Documents and by Section 6.4 is in full force and effectLoan Parties as of September 30, 2003.
(hviii) Executed copies A certificate, executed by a duly authorized officer of financing statements the Company, certifying that as of September 30, 2003 the Company was in appropriate form for filing under compliance with the Uniform Commercial Code requirements of each jurisdiction as may be necessary to perfect Section 4.4 of the security interests purported to be created by AIG Pledge Agreement (which certificate shall set forth in reasonable detail the Collateral Documentscalculations upon which the Company determined such compliance).
(iix) Favorable opinions of: (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., Deputy General Counsel of the Company and counsel for the other Loan Parties, in substantially the form of Exhibit C and as to such other matters as the Required Lenders, through the Administrative Agent, may reasonably request and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Loan Parties, in substantially the form of EXHIBIT J, Exhibit D and as to such other matters as any Lender or Issuer the Required Lenders, through the Agent Administrative Agent, may reasonably request, together with .
(x) Duly executed copies of a copy Reaffirmation in the form of Attachment A attached hereto from each of the opinions rendered Company's Subsidiaries identified thereon.
(b) The following statements shall be true and the Administrative Agent shall have received a certificate of a duly authorized officer of each Borrower, dated the Closing Date and in sufficient copies for each Lender stating that:
(i) the representations and warranties set forth in Section 6.01 of this Agreement are true and correct with respect to such Borrower on and as of the Closing Date as though made on and as of such date,
(ii) no event has occurred and is continuing that constitutes a Default or an Event of Default, and
(iii) all Governmental Approvals necessary in connection with the Loan Documents and the transactions contemplated thereby and the continuing operations of such Borrower and its Subsidiaries have been obtained and are in full force and effect, and all third party approvals necessary or advisable in connection with the Loan Documents and the transactions contemplated thereby and the continuing operations of such Borrower and its Subsidiaries have been obtained and are in full force and effect, other than filings necessary to create or perfect security interests in the Collateral or as may be required under applicable energy, antitrust or securities laws in connection with the exercise of remedies with respect to certain Collateral.
(c) The Administrative Agent shall have received evidence satisfactory to it that all financing statements relating to the Collateral have been completed for filing or recording and/or filed, and all certificates representing capital stock or other ownership interests included in the Collateral (including, without limitation, certificates, if any, representing the capital stock or other ownership interests identified on Schedule II hereto) have been delivered to the Collateral Agent (with duly executed stock powers).
(d) The Borrowers shall have paid, on or before the Closing Date, all fees under or referenced in Section 2.02(b) and all expenses referenced in Section 10.04(a), in each case to the extent due and payable as of the Closing Date.
(e) The Administrative Agent shall have received each of the following on or before the Closing Date, in each case in form and substance satisfactory to it with sufficient copies for each Lender:
(i) A certificate, executed by such firms the chief executive officer and the chief financial officer of the Company and Consumers, as applicable, in favor of the Agents and the Lenders with respect to the enforceability financial statements described in Sections 6.01(e)(i), (ii), (iii) and (iv) certifying that such financial statements have been prepared in accordance with GAAP (except for changes resulting from any Restatement Event other than the Restatement itself) and are true and correct as of the Securitization Documents date of such certificate;
(ii) Copies of the financial statements described in Sections 6.01(e)(i), (ii), (iii) and related matters accompanied by a letter to (iv); and
(iii) Copies of the effect that Company's Annual Report on Form 10-K/A for the Agentfiscal year ended December 31, the Lenders and the Issuer may rely thereon2002.
(jf) A certificate, signed The Administrative Agent shall have received evidence satisfactory to it that on the Closing Date all "Loans" under (and as defined in) the Existing Credit Agreement and all other amounts due under the Existing Credit Agreement have been paid in full by a Responsible Officer of the Borrower, stating that each of the conditions specified in Sections 3.2(a), (b), (c) and (d) and 3.3Company.
Appears in 1 contract
Sources: Credit Agreement (CMS Energy Corp)
Conditions Precedent to the Effectiveness of this Agreement. The effectiveness of this Agreement is subject to satisfaction the fulfillment of the following conditions precedent that the precedent:
(a) The Administrative Agent shall have received, on or before the Effective Closing Date, the following, each dated the Effective Date unless otherwise indicated, in form and substance satisfactory to the Agent each Lender (except where otherwise specified below) and (except for the any Promissory Notes, if any) in sufficient copies for each Lender:
(a) This Agreement, duly executed and delivered by the Borrower, in form and substance satisfactory to the Agent and the Lenders.
(b) A Note to the order of each Lender who requests a Note pursuant to Section 2.1(c).
(ci) Certified copies of (i) the resolutions of the Board of Directors, or of the Executive Committee of the Board of Directors (or persons performing similar functions), of each Borrower, each Guarantor and each other Grantor (each a "LOAN PARTY") authorizing each such Loan Party approving the to enter into each Loan Documents Document to which it is, or is to be, a party, and (ii) of all documents evidencing other necessary corporate or other action and required governmental and third party approvalsGovernmental Approvals, licenses and consents if any, with respect to each such Loan Document and the transactions contemplated therebyDocument.
(d) A copy of the articles or certificate of incorporation of each Loan Party certified as of a recent date by the Secretary of State of the state of incorporation of such Loan Party, together with certificates of such official attesting to the good standing of each such Loan Party, and a copy of the certificate of incorporation and the By-Laws of each Loan Party certified as of the Effective Date by the Secretary or an Assistant Secretary of each such Loan Party.
(eii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and names, true signatures and incumbency of each officer (A) the officers of such Loan Party who has been authorized to execute sign the Loan Documents to which it is, or is to be, a party, and deliver any Loan Document or the other document required hereunder documents to be executed delivered hereunder and delivered thereunder and (B) the representatives of such Loan Party authorized to sign notices to be provided under the Loan Documents to which it is, or is to be, a party, which representatives shall be acceptable to the Administrative Agent.
(iii) Copies of the Certificate of Incorporation and by-laws (or comparable constitutive documents) of each Loan Party, together with all amendments thereto, certified by the Secretary or on behalf an Assistant Secretary of each such Loan Party.
(fiv) Certified copies Good Standing Certificates (or other similar certificate) for each of Requests for Information or Copies (Form UCC-11)the Loan Parties, or equivalent reports, listing all effective financing statements which name any issued by the Secretary of State of the jurisdiction of organization of each such Loan Party as of a recent date.
(under its present name and or previous namev) as debtorThe Guaranty, together with copies of such other financing statements duly executed by each Guarantor.
(none of which shall cover the Collateral purported to be covered by such Amended and Restated Security Agreement except as otherwise permitted vi) The Pledge Agreements, duly executed by the Loan Documents)Borrowers and each Grantor, as applicable.
(vii) The Cash Collateral Agreement, duly executed by each Borrower.
(viii) A certified copy of Schedule I hereto, in form and substance reasonably satisfactory to the Administrative Agent setting forth:
(A) all Project Finance Debt of the Company and the Consolidated Subsidiaries, as of June 30, 2004; and
(gB) Evidence that the insurance required by the terms debt (as such term is construed in accordance with GAAP) of the Collateral Documents and by Section 6.4 is in full force and effect.
(h) Executed copies Loan Parties as of financing statements in appropriate form for filing under the Uniform Commercial Code of each jurisdiction as may be necessary to perfect the security interests purported to be created by the Collateral Documents.
(i) Favorable opinions of counsel to the Loan Parties, in substantially the form of EXHIBIT J, and as to such other matters as any Lender or Issuer through the Agent may reasonably request, together with a copy of the opinions rendered by such firms with respect to the enforceability of the Securitization Documents and related matters accompanied by a letter to the effect that the Agent, the Lenders and the Issuer may rely thereon.
(j) A certificate, signed by a Responsible Officer of the Borrower, stating that each of the conditions specified in Sections 3.2(a), (b), (c) and (d) and 3.3June 30,
Appears in 1 contract
Sources: Credit Agreement (CMS Energy Corp)
Conditions Precedent to the Effectiveness of this Agreement. The effectiveness of this Agreement is subject to satisfaction the fulfillment of the following conditions precedent that the precedent:
(a) The Administrative Agent shall have received, on or before the Effective Closing Date, the following, each dated the Effective Date unless otherwise indicated, in form and substance satisfactory to the Agent each Lender (except where otherwise specified below) and (except for the any Promissory Notes, if any) in sufficient copies for each Lender:
(a) This Agreement, duly executed and delivered by the Borrower, in form and substance satisfactory to the Agent and the Lenders.
(b) A Note to the order of each Lender who requests a Note pursuant to Section 2.1(c).
(ci) Certified copies of (i) the resolutions of the Board of Directors, or of the Executive Committee of the Board of Directors (or persons performing similar functions), of each Loan Party approving the authorizing each such Loan Documents Party to enter into each Loan Document to which it is, or is to be, a party, and (ii) of all documents evidencing other necessary corporate or other action and required governmental and third party approvalsGovernmental Approvals, licenses and consents if any, with respect to each such Loan Document and the transactions contemplated therebyDocument.
(d) A copy of the articles or certificate of incorporation of each Loan Party certified as of a recent date by the Secretary of State of the state of incorporation of such Loan Party, together with certificates of such official attesting to the good standing of each such Loan Party, and a copy of the certificate of incorporation and the By-Laws of each Loan Party certified as of the Effective Date by the Secretary or an Assistant Secretary of each such Loan Party.
(eii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and names, true signatures and incumbency of each officer (A) the officers of such Loan Party who has been authorized to execute sign the Loan Documents to which it is, or is to be, a party, and deliver any Loan Document or the other document required hereunder documents to be executed delivered hereunder and delivered thereunder and (B) the representatives of such Loan Party authorized to sign notices to be provided under the Loan Documents to which it is, or is to be, a party, which representatives shall be acceptable to the Administrative Agent.
(iii) Copies of the Certificate of Incorporation and by-laws (or comparable constitutive documents) of each Loan Party, together with all amendments thereto, certified by the Secretary or on behalf an Assistant Secretary of each such Loan Party.
(fiv) Certified copies Good Standing Certificates (or other similar certificate) for each of Requests for Information or Copies (Form UCC-11)the Loan Parties, or equivalent reports, listing all effective financing statements which name any issued by the Secretary of State of the jurisdiction of organization of each such Loan Party as of a recent date.
(under its present name and or previous namev) as debtorThe Guaranty, together with copies of such other financing statements duly executed by each Guarantor.
(none of which shall cover the Collateral purported to be covered by such Amended and Restated Security Agreement except as otherwise permitted vi) The Pledge Agreements, duly executed by the Loan Documents)Borrowers and each Grantor, as applicable.
(vii) The Cash Collateral Agreement, duly executed by each Borrower.
(viii) A certified copy of Schedule I hereto, in form and substance reasonably satisfactory to the Administrative Agent setting forth:
(A) all Project Finance Debt of the Company and the Consolidated Subsidiaries, as of March 31, 2005; and
(gB) Evidence that the insurance required by the terms debt (as such term is construed in accordance with GAAP) of the Collateral Documents and by Section 6.4 is in full force and effectLoan Parties as of March 31, 2005.
(hix) Executed copies A certificate, executed by a duly authorized officer of financing statements Enterprises, certifying that as of March 31, 2005 (on a pro forma basis giving effect to the transfer by Enterprises to the Company of the membership interests of CMS Capital) Enterprises was in appropriate form for filing under compliance with the Uniform Commercial Code requirements of each jurisdiction as may be necessary to perfect Section 4.4 of the security interests purported to be created by AIG Pledge Agreement (which certificate shall set forth in reasonable detail the Collateral Documentscalculations upon which Enterprises determined such compliance).
(ix) Favorable opinions of: (A) Belinda Foxworth, Esq., Deputy General Counsel of counsel to the Company and ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ other Loan Parties, in substantially the form of EXHIBIT J, Exhibit C and as to such other matters as any Lender or Issuer the Required Lenders, through the Agent Administrative Agent, may reasonably requestrequest and (B) Sidley Austin Brown & Wood LLP, together with special counsel to the Administrative Ag▇▇▇, ▇▇ ▇▇▇▇tan▇▇▇▇ly the form of Exhibit D.
(xi) Duly executed copies of a copy Reaffirmation in the form of Attachment A attached hereto from each of the opinions rendered Company's Subsidiaries identified thereon.
(b) The following statements shall be true and the Administrative Agent shall have received a certificate of a duly authorized officer of each Borrower, dated the Closing Date and in sufficient copies for each Lender stating that:
(i) the representations and warranties set forth in Section 7.01 of this Agreement are true and correct with respect to such Borrower on and as of the Closing Date as though made on and as of such date,
(ii) no event has occurred and is continuing that constitutes a Default or an Event of Default, and
(iii) all Governmental Approvals necessary in connection with the Loan Documents and the transactions contemplated thereby and the continuing operations of such Borrower and its Subsidiaries have been obtained and are in full force and effect, and all third party approvals necessary or advisable in connection with the Loan Documents and the transactions contemplated thereby and the continuing operations of such Borrower and its Subsidiaries have been obtained and are in full force and effect, other than filings necessary to create or perfect security interests in the Collateral or as may be required under applicable energy, antitrust or securities laws in connection with the exercise of remedies with respect to certain Collateral.
(c) The Administrative Agent shall have received evidence satisfactory to it that all financing statements relating to the Collateral have been completed for filing or recording and/or filed, and all certificates representing capital stock or other ownership interests included in the Collateral (including, without limitation, certificates, if any, representing the capital stock or other ownership interests identified on Schedule II hereto) have been delivered to the Collateral Agent (with duly executed stock powers).
(d) The Borrowers shall have paid, on or before the Closing Date, all fees under or referenced in Section 2.02(b) and all expenses referenced in Section 11.04(a), in each case to the extent due and payable as of the Closing Date.
(e) The Administrative Agent shall have received each of the following on or before the Closing Date, in each case in form and substance satisfactory to it with sufficient copies for each Lender:
(i) A certificate, executed by such firms the chief executive officer and the chief financial officer of the Company and Consumers, as applicable, in favor of the Agents and the Lenders with respect to the enforceability financial statements described in Sections 7.01(e)(i), (ii), (iii) and (iv) certifying that such financial statements have been prepared in accordance with GAAP and are true and correct as of the Securitization Documents date of such certificate;
(ii) Copies of the financial statements described in Sections 7.01(e)(i), (ii), (iii) and related matters accompanied by a letter to (iv); and
(iii) Copies of the effect that Company's Annual Report on Form 10-K for the Agentfiscal year ended December 31, the Lenders and the Issuer may rely thereon2004.
(jf) A certificate, signed The Administrative Agent shall have received evidence satisfactory to it that on the Closing Date all "Letters of Credit" under (and as defined in) the Existing Credit Agreement shall constitute Transitional Letters of Credit hereunder and all "Loans" under (and as defined in) the Existing Credit Agreement and all other amounts due under the Existing Credit Agreement have been paid in full by a Responsible Officer of the Borrower, stating that each of the conditions specified in Sections 3.2(a), (b), (c) and (d) and 3.3Company.
Appears in 1 contract
Sources: Credit Agreement (CMS Energy Corp)
Conditions Precedent to the Effectiveness of this Agreement. The effectiveness of this Agreement is subject to satisfaction the fulfillment of the following conditions precedent that the precedent:
(a) The Administrative Agent shall have received, on or before the Effective Closing Date, the following, each dated the Effective Date unless otherwise indicated, in form and substance satisfactory to the Agent each Lender (except where otherwise specified below) and (except for the any Promissory Notes, if any) in sufficient copies for each Lender:
(a) This Agreement, duly executed and delivered by the Borrower, in form and substance satisfactory to the Agent and the Lenders.
(b) A Note to the order of each Lender who requests a Note pursuant to Section 2.1(c).
(ci) Certified copies of (i) the resolutions of the Board of Directors Directors, or of the Executive Committee of the Board of Directors, of the Borrower, each Guarantor and each other Grantor (each a "LOAN PARTY") authorizing each such Loan Party to enter into each Loan Party approving the Loan Documents Document to which it is, or is to be, a party, and (ii) of all documents evidencing other necessary corporate action and required governmental and third party approvalsGovernmental Approvals, licenses and consents if any, with respect to each such Loan Document and the transactions contemplated therebyDocument.
(d) A copy of the articles or certificate of incorporation of each Loan Party certified as of a recent date by the Secretary of State of the state of incorporation of such Loan Party, together with certificates of such official attesting to the good standing of each such Loan Party, and a copy of the certificate of incorporation and the By-Laws of each Loan Party certified as of the Effective Date by the Secretary or an Assistant Secretary of each such Loan Party.
(eii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and names, true signatures and incumbency of each officer (A) the officers of such Loan Party who has been authorized to execute sign the Loan Documents to which it is, or is to be, a party, and deliver any Loan Document or the other document required hereunder documents to be executed delivered hereunder and delivered thereunder and (B) the representatives of such Loan Party authorized to sign notices to be provided under the Loan Documents to which it is, or is to be, a party, which representatives shall be acceptable to the Administrative Agent.
(iii) Copies of the Certificate of Incorporation (or comparable charter document) and by-laws of each Loan Party, together with all amendments thereto, certified by the Secretary or on behalf an Assistant Secretary of each such Loan Party.
(fiv) Certified copies Good Standing Certificates (or other similar certificate) for each of Requests for Information or Copies (Form UCC-11)the Loan Parties, or equivalent reports, listing all effective financing statements which name any issued by the Secretary of State of the jurisdiction of organization of each such Loan Party as of a recent date.
(under its present name v) The Guaranty, duly executed by each Guarantor.
(vi) The Pledge Agreements, duly executed by the Borrower and or previous nameeach Grantor, as applicable.
(vii) as debtorA certified copy of Schedule II hereto, in form and substance reasonably satisfactory to the Administrative Agent setting forth:
(A) all Project Finance Debt of the Consolidated Subsidiaries, together with copies the Borrower's Ownership Interest in each such Consolidated Subsidiary, as of such other financing statements (none of which shall cover the Collateral purported to be covered by such Amended and Restated Security Agreement except as otherwise permitted by the Loan Documents)June 30, 2002; and
(gB) Evidence that the insurance required by the terms debt (as such term is construed in accordance with GAAP) of the Collateral Documents and by Section 6.4 is in full force and effectLoan Parties as of June 30, 2002.
(hviii) Executed copies A certificate, executed by a duly authorized officer of financing statements the Borrower, confirming that attached thereto is a true, correct and complete copy of the Enterprises Credit Agreement, as in appropriate form for filing under effect on the Uniform Commercial Code of each jurisdiction as may be necessary to perfect the security interests purported to be created by the Collateral DocumentsClosing Date.
(iix) Favorable opinions of counsel to of:
(A) Michael D. VanHemert, Esq., Deputy General Counsel o▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇ounsel for the other Loan Parties, in substantially the form of EXHIBIT J, Exhibit C and as to such other matters as any Lender or Issuer the Required Lenders, through the Administrative Agent, may reasonably request; and
(B) Hughes Hubbard & Reed LLP, special counsel to the Lo▇▇ ▇▇▇t▇▇▇ ▇▇ sub▇▇▇▇tially the form of Exhibit D-1 and as to such other matters as the Administrative Agent may reasonably request; and
(C) Skadden, together with a copy of the opinions rendered by such firms with respect Arps, Slate, Meagher & Flom LLP, special counsel to the enforceability Loan Part▇▇▇ ▇▇ sub▇▇▇▇tially the form of Exhibit D-2 and as to such other matters as the Securitization Documents and related matters accompanied by a letter to the effect that the Agent, the Lenders and the Issuer Administrative Agent may rely thereonreasonably request.
(jb) A certificate, signed by The following statements shall be true and the Administrative Agent shall have received a Responsible Officer certificate of a duly authorized officer of the Borrower, dated the Closing Date and in sufficient copies for each Lender stating that each that:
(i) the representations and warranties set forth in Section 7.01 of this Agreement are true and correct on and as of the conditions specified Closing Date as though made on and as of such date,
(ii) no event has occurred and is continuing that constitutes a Default or an Event of Default, and
(iii) all Governmental Approvals necessary in Sections 3.2(a)connection with the Loan Documents and the transactions contemplated thereby have been obtained and are in full force and effect, (b)and all third party approvals necessary or advisable in connection with the Loan Documents and the transactions contemplated thereby have been obtained and are in full force and effect, other than filings necessary to create or perfect security interests in the Collateral or as may be required under applicable energy, antitrust or securities laws in connection with the exercise of remedies with respect to certain Collateral.
(c) The Borrower shall have paid all fees under or referenced in Section 2.02 and all expenses referenced in Section 11.04(a), in each case to the extent then due and payable.
(d) The Administrative Agent shall have received evidence satisfactory to it that all financing statements relating to the Collateral have been completed for filing or recording, and 3.3all certificates representing capital stock included in the Collateral have been delivered to the Collateral Agent (with duly executed stock powers).
Appears in 1 contract
Conditions Precedent to the Effectiveness of this Agreement. The effectiveness of this Agreement is subject to satisfaction the fulfillment of the following conditions precedent that the precedent:
(a) The Administrative Agent shall have received, on or before the Effective Closing Date, the following, each dated the Effective Date unless otherwise indicated, in form and substance satisfactory to the Agent each Lender (except where otherwise specified below) and (except for the any Promissory Notes, if any) in sufficient copies for each Lender:
(a) This Agreement, duly executed and delivered by the Borrower, in form and substance satisfactory to the Agent and the Lenders.
(b) A Note to the order of each Lender who requests a Note pursuant to Section 2.1(c).
(ci) Certified copies of (i) the resolutions of the Board of Directors, or of the Executive Committee of the Board of Directors (or persons performing similar functions), of each Borrower, each Guarantor and each other Grantor (each a "LOAN PARTY") authorizing each such Loan Party approving the to enter into each Loan Documents Document to which it is, or is to be, a party, and (ii) of all documents evidencing other necessary corporate or other action and required governmental and third party approvalsGovernmental Approvals, licenses and consents if any, with respect to each such Loan Document and the transactions contemplated therebyDocument.
(d) A copy of the articles or certificate of incorporation of each Loan Party certified as of a recent date by the Secretary of State of the state of incorporation of such Loan Party, together with certificates of such official attesting to the good standing of each such Loan Party, and a copy of the certificate of incorporation and the By-Laws of each Loan Party certified as of the Effective Date by the Secretary or an Assistant Secretary of each such Loan Party.
(eii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and names, true signatures and incumbency of each officer (A) the officers of such Loan Party who has been authorized to execute sign the Loan Documents to which it is, or is to be, a party, and deliver any Loan Document or the other document required hereunder documents to be executed delivered hereunder and delivered thereunder and (B) the representatives of such Loan Party authorized to sign notices to be provided under the Loan Documents to which it is, or is to be, a party, which representatives shall be acceptable to the Administrative Agent.
(iii) Copies of the Certificate of Incorporation and by-laws (or comparable constitutive documents) of each Loan Party, together with all amendments thereto, certified by the Secretary or on behalf an Assistant Secretary of each such Loan Party.
(f) Certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, listing all effective financing statements which name any Loan Party (under its present name and or previous name) as debtor, together with copies of such other financing statements (none of which shall cover the Collateral purported to be covered by such Amended and Restated Security Agreement except as otherwise permitted by the Loan Documents); and
(g) Evidence that the insurance required by the terms of the Collateral Documents and by Section 6.4 is in full force and effect.
(h) Executed copies of financing statements in appropriate form for filing under the Uniform Commercial Code of each jurisdiction as may be necessary to perfect the security interests purported to be created by the Collateral Documents.
(i) Favorable opinions of counsel to the Loan Parties, in substantially the form of EXHIBIT J, and as to such other matters as any Lender or Issuer through the Agent may reasonably request, together with a copy of the opinions rendered by such firms with respect to the enforceability of the Securitization Documents and related matters accompanied by a letter to the effect that the Agent, the Lenders and the Issuer may rely thereon.
(j) A certificate, signed by a Responsible Officer of the Borrower, stating that each of the conditions specified in Sections 3.2(a), (b), (c) and (d) and 3.3
Appears in 1 contract
Sources: Credit Agreement (CMS Energy Corp)
Conditions Precedent to the Effectiveness of this Agreement. The effectiveness of this Agreement is subject to satisfaction the fulfillment of the following conditions precedent that the precedent:
(a) The Administrative Agent shall have received, on or before the Effective Closing Date, the following, each dated the Effective Date unless otherwise indicated, in form and substance satisfactory to the Agent each Lender (except where otherwise specified below) and (except for the any Promissory Notes, if any) in sufficient copies for each Lender:
(a) This Agreement, duly executed and delivered by the Borrower, in form and substance satisfactory to the Agent and the Lenders.
(b) A Note to the order of each Lender who requests a Note pursuant to Section 2.1(c).
(ci) Certified copies of (i) the resolutions of the Board of Directors, or of the Executive Committee of the Board of Directors (or persons performing similar functions), of the Borrower, each Guarantor and each other Grantor (each a "LOAN PARTY") authorizing each such Loan Party to enter into each Loan Party approving the Loan Documents Document to which it is, or is to be, a party, and (ii) of all documents evidencing other necessary corporate or other action and required governmental and third party approvalsGovernmental Approvals, licenses and consents if any, with respect to each such Loan Document and the transactions contemplated therebyDocument.
(d) A copy of the articles or certificate of incorporation of each Loan Party certified as of a recent date by the Secretary of State of the state of incorporation of such Loan Party, together with certificates of such official attesting to the good standing of each such Loan Party, and a copy of the certificate of incorporation and the By-Laws of each Loan Party certified as of the Effective Date by the Secretary or an Assistant Secretary of each such Loan Party.
(eii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and names, true signatures and incumbency of each officer (A) the officers of such Loan Party who has been authorized to execute sign the Loan Documents to which it is, or is to be, a party, and deliver any Loan Document or the other document required hereunder documents to be executed delivered hereunder and delivered thereunder and (B) the representatives of such Loan Party authorized to sign notices to be provided under the Loan Documents to which it is, or is to be, a party, which representatives shall be acceptable to the Administrative Agent.
(iii) Copies of the Certificate of Incorporation and by-laws (or comparable constitutive documents) of each Loan Party, together with all amendments thereto, certified by the Secretary or on behalf an Assistant Secretary of each such Loan Party.
(fiv) Certified copies Good Standing Certificates (or other similar certificate) for each of Requests for Information or Copies (Form UCC-11)the Loan Parties, or equivalent reports, listing all effective financing statements which name any issued by the Secretary of State of the jurisdiction of organization of each such Loan Party as of a recent date.
(under its present name v) The Guaranty, duly executed by each Guarantor.
(vi) The Pledge Agreement described in clause (i) of the definition of "Pledge Agreements", duly executed by CMS Energy.
(vii) A certified copy of Schedule I hereto, in form and or previous namesubstance reasonably satisfactory to the Administrative Agent setting forth:
(A) as debtorall Project Finance Debt of the Consolidated Subsidiaries, together with copies the Borrower's Ownership Interest in each such Consolidated Subsidiary, as of such other financing statements (none of which shall cover the Collateral purported to be covered by such Amended and Restated Security Agreement except as otherwise permitted by the Loan Documents)February 28, 2003; and
(gB) Evidence that the insurance required by the terms debt (as such term is construed in accordance with GAAP) of the Collateral Documents and by Section 6.4 is in full force and effectLoan Parties as of February 28, 2003.
(h) Executed copies of financing statements in appropriate form for filing under the Uniform Commercial Code of each jurisdiction as may be necessary to perfect the security interests purported to be created by the Collateral Documents.
(iviii) Favorable opinions of:
(A) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., Deputy General Counsel of the Borrower and counsel to for the other Loan Parties, in substantially the form of EXHIBIT J, Exhibit C and as to such other matters as any Lender or Issuer the Required Lenders, through the Administrative Agent, may reasonably request; and
(B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Loan Parties in substantially the form of Exhibit D and as to such other matters as the Administrative Agent may reasonably request, together with a copy of the opinions rendered by such firms with respect to the enforceability of the Securitization Documents and related matters accompanied by a letter to the effect that the Agent, the Lenders and the Issuer may rely thereon.
(jb) A certificate, signed by The following statements shall be true and the Administrative Agent shall have received a Responsible Officer certificate of a duly authorized officer of the Borrower, dated the Closing Date and in sufficient copies for each Lender stating that each that:
(i) the representations and warranties set forth in Section 6.01 of this Agreement are true and correct on and as of the conditions specified Closing Date as though made on and as of such date,
(ii) no event has occurred and is continuing that constitutes a Default or an Event of Default, and
(iii) all Governmental Approvals necessary in Sections 3.2(a)connection with the Loan Documents and the transactions contemplated thereby have been obtained and are in full force and effect, (b)and all third party approvals necessary or advisable in connection with the Loan Documents and the transactions contemplated thereby have been obtained and are in full force and effect, other than filings necessary to create or perfect security interests in the Collateral or as may be required under applicable energy, antitrust or securities laws in connection with the exercise of remedies with respect to certain Collateral.
(c) The Borrower shall have paid all fees under or referenced in Section 2.02 and all expenses referenced in Section 10.04(a), in each case, to the extent then due and payable.
(d) The Administrative Agent shall have received evidence satisfactory to it that:
(i) all financing statements relating to the Collateral have been completed for filing or recording and/or filed, and 3.3all certificates representing capital stock or other ownership interests included in the Collateral have been delivered to the Collateral Agent (with duly executed stock powers); and
(ii) the Borrower has deposited cash into a cash collateral account (the "BOND CASH COLLATERAL ACCOUNT") in respect of which the Collateral Agent shall have a first priority security interest, which cash collateral shall be used as further described in Section 7.01(n).
Appears in 1 contract
Conditions Precedent to the Effectiveness of this Agreement. The effectiveness of this Agreement is subject to satisfaction the fulfillment of the following conditions precedent that the precedent:
(a) The Administrative Agent shall have received, on or before the Effective Closing Date, the following, each dated the Effective Date unless otherwise indicated, in form and substance satisfactory to the Agent each Lender (except where otherwise specified below) and (except for the any Promissory Notes, if any) in sufficient copies for each Lender:
(a) This Agreement, duly executed and delivered by the Borrower, in form and substance satisfactory to the Agent and the Lenders.
(b) A Note to the order of each Lender who requests a Note pursuant to Section 2.1(c).
(ci) Certified copies of (i) the resolutions of the Board of Directors, or of the Executive Committee of the Board of Directors (or persons performing similar functions), of the Borrower, each Guarantor and each other Grantor (each a "LOAN PARTY") authorizing each such Loan Party to enter into each Loan Party approving the Loan Documents Document to which it is, or is to be, a party, and (ii) of all documents evidencing other necessary corporate or other action and required governmental and third party approvalsGovernmental Approvals, licenses and consents if any, with respect to each such Loan Document and the transactions contemplated therebyDocument.
(d) A copy of the articles or certificate of incorporation of each Loan Party certified as of a recent date by the Secretary of State of the state of incorporation of such Loan Party, together with certificates of such official attesting to the good standing of each such Loan Party, and a copy of the certificate of incorporation and the By-Laws of each Loan Party certified as of the Effective Date by the Secretary or an Assistant Secretary of each such Loan Party.
(eii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and names, true signatures and incumbency of each officer (A) the officers of such Loan Party who has been authorized to execute sign the Loan Documents to which it is, or is to be, a party, and deliver any Loan Document or the other document required hereunder documents to be executed delivered hereunder and delivered thereunder and (B) the representatives of such Loan Party authorized to sign notices to be provided under the Loan Documents to which it is, or is to be, a party, which representatives shall be acceptable to the Administrative Agent.
(iii) Copies of the Certificate of Incorporation and by-laws (or comparable constitutive documents) of each Loan Party, together with all amendments thereto, certified by the Secretary or on behalf an Assistant Secretary of each such Loan Party.
(fiv) Certified copies Good Standing Certificates (or other similar certificate) for each of Requests for Information or Copies (Form UCC-11)the Loan Parties, or equivalent reports, listing all effective financing statements which name any issued by the Secretary of State of the jurisdiction of organization of each such Loan Party as of a recent date.
(under its present name v) The Guaranty, duly executed by each Guarantor.
(vi) The Pledge Agreement described in clause (i) of the definition of "Pledge Agreements", duly executed by CMS Energy.
(vii) A certified copy of Schedule I hereto, in form and or previous namesubstance reasonably satisfactory to the Administrative Agent setting forth:
(A) as debtorall Project Finance Debt of the Consolidated Subsidiaries, together with copies the Borrower's Ownership Interest in each such Consolidated Subsidiary, as of such other financing statements (none of which shall cover the Collateral purported to be covered by such Amended and Restated Security Agreement except as otherwise permitted by the Loan Documents)February 28, 2003; and
(gB) Evidence that the insurance required by the terms debt (as such term is construed in accordance with GAAP) of the Collateral Documents and by Section 6.4 is in full force and effectLoan Parties as of February 28, 2003.
(hviii) Executed copies A certificate, executed by a duly authorized officer of financing statements the Borrower, confirming that attached thereto is a true, correct and complete copy of the CMS Energy Credit Agreement, as in appropriate form for filing under effect on the Uniform Commercial Code of each jurisdiction as may be necessary Closing Date, which CMS Energy Credit Agreement shall amend and restate Existing Credit Agreements on terms and conditions reasonably acceptable to perfect the security interests purported to be created by the Collateral DocumentsAgents.
(iix) Favorable opinions of:
(A) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., Deputy General Counsel of the Borrower and counsel to for the other Loan Parties, in substantially the form of EXHIBIT J, Exhibit C and as to such other matters as any Lender or Issuer the Required Lenders, through the Administrative Agent, may reasonably request; and
(B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Loan Parties in substantially the form of Exhibit D and as to such other matters as the Administrative Agent may reasonably request, together with a copy of the opinions rendered by such firms with respect to the enforceability of the Securitization Documents and related matters accompanied by a letter to the effect that the Agent, the Lenders and the Issuer may rely thereon.
(jb) A certificate, signed by The following statements shall be true and the Administrative Agent shall have received a Responsible Officer certificate of a duly authorized officer of the Borrower, dated the Closing Date and in sufficient copies for each Lender stating that each that:
(i) the representations and warranties set forth in Section 6.01 of this Agreement are true and correct on and as of the conditions specified Closing Date as though made on and as of such date,
(ii) no event has occurred and is continuing that constitutes a Default or an Event of Default, and
(iii) all Governmental Approvals necessary in Sections 3.2(a)connection with the Loan Documents and the transactions contemplated thereby have been obtained and are in full force and effect, (b)and all third party approvals necessary or advisable in connection with the Loan Documents and the transactions contemplated thereby have been obtained and are in full force and effect, other than filings necessary to create or perfect security interests in the Collateral or as may be required under applicable energy, antitrust or securities laws in connection with the exercise of remedies with respect to certain Collateral.
(c) The Administrative Agent shall have received evidence satisfactory to it that:
(i) all financing statements relating to the Collateral have been completed for filing or recording and/or filed, and all certificates representing capital stock or other ownership interests included in the Collateral have been delivered to the Collateral Agent (dwith duly executed stock powers); and
(ii) and 3.3the Borrower has deposited cash into a cash collateral account (the "Bond Cash Collateral Account") in respect of which the Collateral Agent shall have a first priority security interest, which cash collateral shall be used as further described in Section 7.01(n).
Appears in 1 contract
Conditions Precedent to the Effectiveness of this Agreement. The effectiveness of this Agreement is subject to satisfaction of the conditions precedent that the Agent shall have received, on the Effective Date, the following, each dated the Effective Date unless otherwise indicated, in form and substance satisfactory to the Agent and (except for the Notes, if any) in sufficient copies for each Lender:
(a) This Agreement, duly executed and delivered by the Borrower, in form and substance satisfactory to the Agent and the Lenders.
(b) A Note The Notes to the order of each Lender who requests a Note pursuant to Section 2.1(c)the Lenders.
(c) Certified copies of (i) the resolutions of the Board of Directors of each Loan Party approving the Loan Documents to which it is a party, and (ii) all documents evidencing other necessary corporate action and required governmental and third party approvals, licenses and consents with respect to each Loan Document and the transactions contemplated thereby.
(d) A copy of the articles or certificate of incorporation of each Loan Party certified as of a recent date by the Secretary of State of the state of incorporation of such Loan Party, together with certificates of such official attesting to the good standing of each such Loan Party, and a copy of the certificate of incorporation and the By-Laws of each Loan Party certified as of the Effective Date by the Secretary or an Assistant Secretary of each such Loan Party.
(e) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of each officer of such Loan Party who has been authorized to execute and deliver any Loan Document or other document required hereunder to be executed and delivered by or on behalf of such Loan Party.
(f) Certified A Subsidiary Guaranty, duly executed by EBWVA.
(g) The Amended and Restated Security Agreement duly executed by the Borrower and each Guarantor together with:
(i) acknowledgment copies or other evidence satisfactory to the Agent of proper financing statements (Form UCC-1) (the "FINANCING STATEMENTS") duly filed under the Uniform Commercial Code of all jurisdictions as may be necessary or, in the opinion of the Agent, desirable to perfect the Lien created by such Security Agreement,
(ii) certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, listing the Financing Statements referred to in paragraph (i) above and all other effective financing statements which name any Loan Party (under its present name and or previous name) as debtordebtor and which are filed in the jurisdictions referred to in said paragraph (i) above, together with copies of such other financing statements (none of which shall cover the Collateral purported to be covered by such Amended and Restated Security Agreement except as otherwise permitted by the Loan Documents); and
(giii) Evidence evidence that the insurance required by the terms of the Collateral Documents and by Section 6.4 is in full force and effect.
(h) Schedule II to the Borrower Pledge Agreement duly executed by the Borrower, together with the certificates evidencing the Pledged Shares referred to therein, accompanied by appropriate executed stock powers endorsed in blank.
(i) Mortgages, duly executed and acknowledged by each Loan Party an owner thereof.
(j) Executed copies of financing statements in appropriate form for filing under the Uniform Commercial Code of each jurisdiction as may be necessary to perfect the security interests purported to be created by the Collateral Documents.
(ik) Favorable opinions A favorable opinion of counsel Jone▇, ▇▇y, Reav▇▇ & ▇ogu▇, ▇▇unsel to the Loan Parties, in substantially the form of EXHIBIT J, and as to such other matters as any Lender or Issuer through the Agent may reasonably request, together with a copy of the opinions opinion rendered by such firms firm with respect to the enforceability of the Securitization Documents and related matters accompanied by a letter to the effect that the Agent, the Lenders and the Issuer may rely thereon.
(jl) A certificate, signed by a Responsible Officer of the Borrower, stating that each of the conditions specified in Sections 3.2(a), (b), (c) and (d) and 3.3
Appears in 1 contract
Conditions Precedent to the Effectiveness of this Agreement. The effectiveness This Agreement shall become effective and the obligation of this Agreement each Lender to make available Advances hereunder is subject to, in addition to satisfaction of the conditions precedent in Section 6.04, the condition that the Administrative Agent and each Lender shall be satisfied with, or the Borrowers shall have receiveddelivered to the Administrative Agent, on as the Effective Datecase may be, the followingfollowing in form, each substance and dated the Effective Date unless otherwise indicated, in form and substance as of a date satisfactory to the Administrative Agent and (except for its counsel and in such number of copies as may be reasonably requested by the Notes, if any) in sufficient copies for each LenderAdministrative Agent:
(a1) This Agreement, duly executed and delivered by the Borrower, in form and substance satisfactory to the Agent and the Lenders.
(b) A Note to the order of each Lender who requests a Note pursuant to Section 2.1(c).
(c) Certified copies certified copy of (i) partnership agreements, other charter documents and by-laws (or equivalent governing documents) of each Loan Party and Limited Recourse Guarantor (together with all amendments thereto); (ii) the resolutions of the Board board of Directors directors (or any duly authorized committee or other governing body thereof) or of the shareholders, as the case may be, of the general partners of the Borrowers and of each other Loan Party and Limited Recourse Guarantor approving the borrowing and other matters provided for in this Agreement, the Guarantee and Security Confirmation, and approving the entering into of all other Credit Documents to which they are a party and the completion of all transactions contemplated thereunder (including, where required, the pledge of Equity Securities thereunder); (iii) all other instruments evidencing necessary corporate, company or partnership action of each Loan Party approving the Loan Documents to which it is a party, and (ii) all documents evidencing other necessary corporate action Limited Recourse Guarantor and of any required governmental and third party approvals, licenses and consents Authorization with respect to each Loan Document such matters; and the transactions contemplated thereby.
(div) A copy of the articles or certificate of incorporation of each Loan Party certified as of a recent date by the Secretary of State of the state of incorporation of such Loan Party, together with certificates of such official attesting to the good standing of each such Loan Party, and a copy of the certificate of incorporation and the By-Laws of each Loan Party certified as of the Effective Date by the Secretary or an Assistant Secretary of each such Loan Party.
(e) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of its officers authorized to sign this Agreement, the Guarantee and Security Confirmation and the other Credit Documents manually or by mechanical means;
(2) a certificate of status, compliance, good standing or like certificate with respect to each officer of such Loan Party who has been authorized and Limited Recourse Guarantor issued by the appropriate Government Authority in the jurisdiction of its formation;
(3) execution and delivery of this Agreement by each of the parties hereto, including for greater certainty each of (i) the Borrowers, (ii) the Guarantors and (iii) the Lenders;
(4) execution and delivery of an acknowledgement and confirmation of guarantee and security by each of the Loan Parties and the Limited Recourse Guarantors (the “Guarantee and Security Confirmation”);
(5) evidence of amendments to execute and deliver any Loan Document existing registration, in the necessary jurisdictions of the Encumbrances or other document required hereunder to be executed and delivered by or notice thereof in favour of the Administrative Agent on behalf of the Lenders, the Hedge Lenders and the Service Lenders, as required under Law, created by the Security Documents in order to preserve or protect such Loan Party.
(f) Certified copies of Requests Encumbrances or other arrangements for Information or Copies (Form UCC-11), or equivalent reports, listing all effective financing statements which name any Loan Party (under its present name and or previous name) as debtoreffecting such registrations acceptable to the Administrative Agent, together with copies all searches necessary in connection herewith;
(6) all Fees and expenses (including the reasonable legal fees and disbursements of Torys LLP, then due and payable under the Credit Documents shall have been paid in full in the applicable currency, or in the case of the legal fees, the Administrative Agent, in its sole discretion, shall be satisfied with arrangements for the payment of such other financing statements (none of which shall cover the Collateral purported to be covered by such Amended Fees and Restated Security Agreement except as otherwise permitted by the Loan Documents); andexpenses;
(g7) Evidence that the insurance required by the terms of the Collateral Documents and by Section 6.4 is in full force and effect.
(h) Executed copies of financing statements in appropriate form for filing under the Uniform Commercial Code of each jurisdiction as may be necessary to perfect the security interests purported to be created by the Collateral Documents.
(i) Favorable favourable opinions of counsel to the Loan PartiesParties and the Limited Recourse Guarantors in the jurisdiction of formation of such Loan Party or Limited Recourse Guarantors and in each jurisdiction specified by the Administrative Agent as is relevant to confirm, in substantially the form of EXHIBIT Jinter alia, corporate existence, good standing, due authorization, execution and as to such other matters as any Lender or Issuer through the Agent may reasonably request, together with a copy of the opinions rendered by such firms with respect to the enforceability of the Securitization Credit Documents and related matters accompanied by a letter to entered into on the effect that the AgentEffective Date, the Lenders and the Issuer may rely thereon.validity, creation and perfection (or continuance thereof) of the Encumbrances created by the applicable Credit Documents;
(j8) the representations and warranties set out in Article 7 shall be true and correct on the Effective Date;
(9) A certificateno Default or Event of Default shall have occurred and be continuing; and
(10) all documentation and other information required by them under applicable “know your customer” and anti-money laundering rules and regulations, signed by a Responsible Officer including without limitation the USA Patriot Act (referred to in the definition of the Borrower, stating that each of the conditions specified in Sections 3.2(aAnti-Terrorism Laws), (b), (c) and (d) and 3.3.
Appears in 1 contract
Sources: Credit Agreement (Vail Resorts Inc)
Conditions Precedent to the Effectiveness of this Agreement. The effectiveness of this Agreement is subject to satisfaction the receipt by IBM Credit of, or waiver in writing by IBM Credit of compliance with, the following conditions precedent:
(A) this Agreement executed and delivered by each Loan Party and IBM Credit;
(B) a favorable opinion of counsel for the Loan Parties in substantially the form of Attachment M;
(C) a certificate of the conditions precedent secretary or an assistant secretary of each Loan Party, substantially in the term and substance of Attachment I hereto, certifying that among other items, (i) such Loan Party is duly organized under the Agent shall have receivedlaws of the State of its organization or incorporation and has its principal place of business as stated therein, (ii) such Loan Party is registered to conduct business in specified states and localities, (iii) true and complete copies of the articles of incorporation, or corresponding organizational documents, as applicable, and by-laws of such Loan Party are delivered therewith, together with all amendments and addenda thereto as in effect on the Effective Datedate thereof, (iv) the followingresolution as stated in the certificate is a true, accurate and compared copy of the resolution adopted by such Loan Party's Board of Directors or, if such Loan Party is a limited liability company, by such Loan Party's authorized members authorizing the execution, delivery and performance of this Agreement and each Other Document executed and delivered in connection herewith, and (v) the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the Other Documents;
(D) certificates dated as of a recent date from the Effective Date unless otherwise indicatedSecretary of State or other appropriate authority evidencing the good standing of each Loan Party in the jurisdiction of its organization and in each other jurisdiction where the ownership or lease of its property or the conduct of its business requires it to qualify to do business;
(E) copies of all approvals and consents from any Person, in each case in form and substance satisfactory to IBM Credit, which are required to enable each Loan Party to authorize, or required in connection with, (a) the execution, delivery or performance of this Agreement and each of the Other Documents, and (b) the legality, validity, binding effect or enforceability of this Agreement and each of the Other Documents;
(F) a lockbox agreement executed by Customer and each Bank, in form and substance satisfactory to the Agent and (except for the Notes, if any) in sufficient copies for each Lender:IBM Credit;
(aG) This a contingent blocked account agreement executed by Customer and each Bank in form and substance satisfactory to IBM Credit;
(H) intercreditor agreements ("Intercreditor Agreement, duly executed and delivered by the Borrower"), in form and substance satisfactory to the Agent and the Lenders.
(b) A Note to the order of IBM Credit, executed by each Lender who requests a Note pursuant to Section 2.1(c).
(c) Certified copies of (i) the resolutions of the Board of Directors other secured creditor of each Loan Party approving the Loan Documents to which it is a party, and (ii) all documents evidencing other necessary corporate action and required governmental and third party approvals, licenses and consents with respect to each Loan Document and the transactions contemplated thereby.as set forth in Attachment A;
(dI) A copy of the articles or certificate of incorporation of UCC-1 financing statements for each jurisdiction reasonably requested by IBM Credit executed by each Loan Party certified as and each guarantor whose guaranty to IBM Credit is intended to be secured by a pledge of a recent date by the Secretary of State of the state of incorporation of such Loan Party, together with certificates of such official attesting to the good standing of each such Loan Party, and a copy of the certificate of incorporation and the By-Laws of each Loan Party certified as of the Effective Date by the Secretary or an Assistant Secretary of each such Loan Party.its assets;
(eJ) the statements, certificates, documents, instruments, financing statements, agreements and information set forth in Attachment A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of each officer of such Loan Party who has been authorized to execute and deliver any Loan Document or other document required hereunder to be executed and delivered by or on behalf of such Loan Party.
(f) Certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, listing all effective financing statements which name any Loan Party (under its present name and or previous name) as debtor, together with copies of such other financing statements (none of which shall cover the Collateral purported to be covered by such Amended and Restated Security Agreement except as otherwise permitted by the Loan Documents)Attachment B; and
(gK) Evidence that the insurance required by the terms of the Collateral Documents and by Section 6.4 is in full force and effect.
(h) Executed copies of financing statements in appropriate form for filing under the Uniform Commercial Code of each jurisdiction as may be necessary to perfect the security interests purported to be created by the Collateral Documents.
(i) Favorable opinions of counsel to the Loan Parties, in substantially the form of EXHIBIT J, and as to all such other matters as any Lender or Issuer through the Agent may reasonably requeststatements, together with a copy of the opinions rendered by such firms certificates, documents, instruments, financing statements, agreements and other information with respect to the enforceability of the Securitization Documents and related matters accompanied contemplated by a letter to the effect that the Agent, the Lenders and the Issuer may rely thereonthis Agreement as IBM Credit shall have reasonably requested.
(j) A certificate, signed by a Responsible Officer of the Borrower, stating that each of the conditions specified in Sections 3.2(a), (b), (c) and (d) and 3.3
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Sources: Inventory and Working Capital Financing Agreement (Multiple Zones Inc)
Conditions Precedent to the Effectiveness of this Agreement. The effectiveness of this Agreement is subject to satisfaction the fulfillment of the following conditions precedent that the precedent:
(a) The Administrative Agent shall have received, on or before the Effective Closing Date, the following, each dated the Effective Date unless otherwise indicated, in form and substance satisfactory to the Agent each Lender (except where otherwise specified below) and (except for the any Promissory Notes, if any) in sufficient copies for each Lender:
(a) This Agreement, duly executed and delivered by the Borrower, in form and substance satisfactory to the Agent and the Lenders.
(b) A Note to the order of each Lender who requests a Note pursuant to Section 2.1(c).
(ci) Certified copies of (i) the resolutions of the Board of Directors Directors, or of the Executive Committee of the Board of Directors, of the Borrower, each Guarantor and each other Grantor (each a "LOAN PARTY") authorizing each such Loan Party to enter into each Loan Party approving the Loan Documents Document to which it is, or is to be, a party, and (ii) of all documents evidencing other necessary corporate action and required governmental and third party approvalsGovernmental Approvals, licenses and consents if any, with respect to each such Loan Document and the transactions contemplated therebyDocument.
(d) A copy of the articles or certificate of incorporation of each Loan Party certified as of a recent date by the Secretary of State of the state of incorporation of such Loan Party, together with certificates of such official attesting to the good standing of each such Loan Party, and a copy of the certificate of incorporation and the By-Laws of each Loan Party certified as of the Effective Date by the Secretary or an Assistant Secretary of each such Loan Party.
(eii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and names, true signatures and incumbency of each officer (A) the officers of such Loan Party who has been authorized to execute sign the Loan Documents to which it is, or is to be, a party, and deliver any Loan Document or the other document required hereunder documents to be executed delivered hereunder and delivered thereunder and (B) the representatives of such Loan Party authorized to sign notices to be provided under the Loan Documents to which it is, or is to be, a party, which representatives shall be acceptable to the Administrative Agent.
(iii) Copies of the Certificate of Incorporation (or comparable charter document) and by-laws of each Loan Party, together with all amendments thereto, certified by the Secretary or on behalf an Assistant Secretary of each such Loan Party.
(f) Certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, listing all effective financing statements which name any Loan Party (under its present name and or previous name) as debtor, together with copies of such other financing statements (none of which shall cover the Collateral purported to be covered by such Amended and Restated Security Agreement except as otherwise permitted by the Loan Documents); and
(g) Evidence that the insurance required by the terms of the Collateral Documents and by Section 6.4 is in full force and effect.
(h) Executed copies of financing statements in appropriate form for filing under the Uniform Commercial Code of each jurisdiction as may be necessary to perfect the security interests purported to be created by the Collateral Documents.
(i) Favorable opinions of counsel to the Loan Parties, in substantially the form of EXHIBIT J, and as to such other matters as any Lender or Issuer through the Agent may reasonably request, together with a copy of the opinions rendered by such firms with respect to the enforceability of the Securitization Documents and related matters accompanied by a letter to the effect that the Agent, the Lenders and the Issuer may rely thereon.
(j) A certificate, signed by a Responsible Officer of the Borrower, stating that each of the conditions specified in Sections 3.2(a), (b), (c) and (d) and 3.3
Appears in 1 contract
Conditions Precedent to the Effectiveness of this Agreement. The effectiveness of this Agreement is subject to satisfaction of the conditions precedent that the Agent shall have received, on the Effective Date, the following, each dated the Effective Date unless otherwise indicated, in form and substance satisfactory to the Agent and (except for the Revolving Credit Notes, if any) in sufficient copies for each Lender:
(a) This Agreement, duly executed and delivered by the Borrower, in form and substance satisfactory to the Agent and the Lenders.
(b) A Note Revolving Credit Note, duly executed and delivered by the Borrower, to the order of each Lender who requests a Revolving Credit Note pursuant to Section SECTION 2.1(c).
(c) The Guaranty, duly executed and delivered by the Guarantors, in form and substance satisfactory to the Agent and the Lenders.
(d) The Security Agreement, duly executed and delivered by each of the Loan Parties, in form and substance satisfactory to the Agent and the Lenders.
(e) Certified copies of (i) the resolutions of the Board of Directors of each Loan Party approving the Loan Documents to which it is a party, party and (ii) all documents evidencing other necessary corporate or other action and required governmental and third third-party approvals, licenses and consents with respect to each Loan Document and the transactions contemplated thereby.
(df) A copy of the articles or certificate of incorporation (or equivalent governing document) of each Loan Party certified as of a recent date by the Secretary of State of the state of incorporation organization of such Loan Party, together with certificates of such official attesting to the good standing of each such Loan Party, and a copy of the certificate of incorporation and the Byby-Laws laws (or other equivalent governing documents) of each Loan Party certified as of the Effective Date by the Secretary or an Assistant Secretary of each such Loan Party.
(eg) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of each officer of such Loan Party who has been authorized to execute and deliver any Loan Document or any other document required hereunder to be executed and delivered by or on behalf of such Loan Party.
(fh) Certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, listing all effective financing statements which name any Loan Party (under its present name and or previous name) as debtor, together with copies of such other financing statements (none of which shall cover the Collateral purported to be covered by such Amended the Pledge and Restated Security Agreement Agreement, except as otherwise permitted by the Loan Documents); and.
(gi) Evidence that the insurance required by the terms of the Collateral Documents and by Section SECTION 6.4 is in full force and effect.
(hj) Executed copies Copies of financing statements in appropriate form for filing under the Uniform Commercial Code UCC of each jurisdiction as may be necessary to perfect the security interests purported to be created by the Collateral Documents.
(ik) Favorable opinions of counsel to the Loan Parties, in substantially the form of EXHIBIT JI, and as to such other matters as any Lender or Issuer through the Agent may reasonably request, together with a copy of the opinions rendered by such firms with respect to the enforceability of the Securitization Documents and related matters accompanied by a letter to the effect that the Agent, the Lenders and the Issuer may rely thereonthereon (or language in such opinions to such effect).
(jl) A certificate, signed by a Responsible Officer of the Borrower, stating that each of the conditions specified in Sections SECTIONS 3.2(a), (b), (c) and through (d) and 3.3
Appears in 1 contract
Conditions Precedent to the Effectiveness of this Agreement. The effectiveness of this Agreement is subject to satisfaction the fulfillment of the following conditions precedent that the precedent:
(a) The Administrative Agent shall have received, on or before the Effective Closing Date, the following, each dated the Effective Date unless otherwise indicated, in form and substance satisfactory to the Agent each Lender (except where otherwise specified below) and (except for the any Promissory Notes, if any) in sufficient copies for each Lender:
(a) This Agreement, duly executed and delivered by the Borrower, in form and substance satisfactory to the Agent and the Lenders.
(b) A Note to the order of each Lender who requests a Note pursuant to Section 2.1(c).
(ci) Certified copies of (i) the resolutions of the Board of Directors, or of the Executive Committee of the Board of Directors (or persons performing similar functions), of the Borrower, each Guarantor and each other Grantor (each a "LOAN PARTY") authorizing each such Loan Party to enter into each Loan Party approving the Loan Documents Document to which it is, or is to be, a party, and (ii) of all documents evidencing other necessary corporate or other action and required governmental and third party approvalsGovernmental Approvals, licenses and consents if any, with respect to each such Loan Document and the transactions contemplated therebyDocument.
(d) A copy of the articles or certificate of incorporation of each Loan Party certified as of a recent date by the Secretary of State of the state of incorporation of such Loan Party, together with certificates of such official attesting to the good standing of each such Loan Party, and a copy of the certificate of incorporation and the By-Laws of each Loan Party certified as of the Effective Date by the Secretary or an Assistant Secretary of each such Loan Party.
(eii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and names, true signatures and incumbency of each officer (A) the officers of such Loan Party who has been authorized to execute sign the Loan Documents to which it is, or is to be, a party, and deliver any Loan Document or the other document required hereunder documents to be executed delivered hereunder and delivered thereunder and (B) the representatives of such Loan Party authorized to sign notices to be provided under the Loan Documents to which it is, or is to be, a party, which representatives shall be acceptable to the Administrative Agent.
(iii) Copies of the Certificate of Incorporation and by-laws (or comparable constitutive documents) of each Loan Party, together with all amendments thereto, certified by the Secretary or on behalf an Assistant Secretary of each such Loan Party.
(fiv) Certified copies Good Standing Certificates (or other similar certificate) for each of Requests for Information or Copies (Form UCC-11)the Loan Parties, or equivalent reports, listing all effective financing statements which name any issued by the Secretary of State of the jurisdiction of organization of each such Loan Party as of a recent date.
(under its present name v) The Guaranty, duly executed by each Guarantor.
(vi) The Pledge Agreements, duly executed by the Borrower and or previous nameeach Grantor, as applicable.
(vii) as debtorA certified copy of Schedule I hereto, in form and substance reasonably satisfactory to the Administrative Agent setting forth:
(A) all Project Finance Debt of the Consolidated Subsidiaries, together with copies the Borrower's Ownership Interest in each such Consolidated Subsidiary, as of such other financing statements (none of which shall cover the Collateral purported to be covered by such Amended and Restated Security Agreement except as otherwise permitted by the Loan Documents)February 28, 2003; and
(gB) Evidence that the insurance required by the terms debt (as such term is construed in accordance with GAAP) of the Collateral Documents and by Section 6.4 is in full force and effectLoan Parties as of February 28, 2003.
(hviii) Executed copies A certificate, executed by a duly authorized officer of financing statements the Borrower, (a) confirming that attached thereto is a true, correct and complete copy of the Enterprises 2003 Credit Agreement, as in appropriate form for filing under effect on the Uniform Commercial Code Closing Date and (b) certifying that as of each jurisdiction as may be necessary to perfect December 31, 2002 the security interests purported to be created by Borrower was in compliance with the Collateral Documentsrequirements of Section 4.4 of the AIG Pledge Agreement (which certificate shall set forth in reasonable detail the calculations upon which the Borrower determined such compliance).
(iix) Favorable opinions of:
(A) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., Deputy General Counsel of the Borrower and counsel to for the other Loan Parties, in substantially the form of EXHIBIT J, Exhibit C and as to such other matters as any Lender or Issuer the Required Lenders, through the Administrative Agent, may reasonably request; and
(B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Loan Parties in substantially the form of Exhibit D and as to such other matters as the Administrative Agent may reasonably request, together with .
(x) Duly executed copies of a copy Reaffirmation in the form of Attachment A attached hereto from each of the opinions rendered by such firms with respect to the enforceability of the Securitization Documents and related matters accompanied by a letter to the effect that the Agent, the Lenders and the Issuer may rely Borrower's Subsidiaries identified thereon.
(jb) A certificate, signed by The following statements shall be true and the Administrative Agent shall have received a Responsible Officer certificate of a duly authorized officer of the Borrower, dated the Closing Date and in sufficient copies for each Lender stating that each that:
(i) the representations and warranties set forth in Section 6.01 of this Agreement are true and correct on and as of the conditions specified Closing Date as though made on and as of such date,
(ii) no event has occurred and is continuing that constitutes a Default or an Event of Default, and
(iii) all Governmental Approvals necessary in Sections 3.2(a)connection with the Loan Documents and the transactions contemplated thereby have been obtained and are in full force and effect, (b)and all third party approvals necessary or advisable in connection with the Loan Documents and the transactions contemplated thereby have been obtained and are in full force and effect, other than filings necessary to create or perfect security interests in the Collateral or as may be required under applicable energy, antitrust or securities laws in connection with the exercise of remedies with respect to certain Collateral.
(c) The Administrative Agent shall have received evidence satisfactory to it that all financing statements relating to the Collateral have been completed for filing or recording and/or filed, and all certificates representing capital stock or other ownership interests included in the Collateral have been delivered to the Collateral Agent (d) and 3.3with duly executed stock powers).
Appears in 1 contract
Conditions Precedent to the Effectiveness of this Agreement. The effectiveness of this Agreement is subject to satisfaction the receipt by IBM Credit of, or waiver in writing by IBM Credit of compliance with, the following conditions precedent:
(A) this Agreement executed and delivered by each Loan Party and IBM Credit;
(B) a favorable opinion of counsel for Loan Parties in substantially the form of Attachment H;
(C) a certificate of the conditions precedent that secretary or an assistant secretary of each Loan Party , substantially in the Agent shall have receivedform and substance of Attachment I hereto, certifying that, among other items, (i) each Loan Party is duly organized under the laws of the State of its organization or incorporation and has its principal place of business as stated therein, (ii) each Loan Party is registered to conduct business in specified states and localities, (iii) true and complete copies of the articles of incorporation, or corresponding organizational documents, as applicable, and by-laws of each Loan Party are delivered therewith, together with all amendments and addenda thereto as in effect on the Effective Datedate thereof, (iv) the followingresolution as stated in the certificate is a true, accurate and compared copy of the resolution adopted by each Loan Party's Board of Directors or, if a Loan Party is a limited liability company, by such Loan Party's authorized members, authorizing the execution, delivery and performance of this Agreement and each Other Document executed and delivered in connection herewith, and (v) the names and true signatures of the officers of each Loan Party authorized to sign this Agreement and the Other Documents;
(D) certificates dated as of a recent date from the Effective Date unless otherwise indicatedSecretary of State or other appropriate authority evidencing the good standing of each Loan Party in the jurisdiction of its organization and in each other jurisdiction where the ownership or lease of its property or the conduct of its business requires it to qualify to do business;
(E) Congress Intercreditor Agreement, in form and substance satisfactory to the Agent IBM Credit, executed by IBM Credit, IBM Belgium Financial Services N.V., and (except for the NotesCongress and acknowledged by Borrower, if any) in sufficient copies for each Lender:Holdings, PFS and PFSweb;
(aF) This Agreement, duly executed and delivered by the preliminary consolidating Financial Statements of Borrower, Holdings and PFSweb for fiscal year ended December 31, 2001 in form and substance satisfactory to IBM Credit in its sole discretion;
(G) copies of all approvals and consents from any Person, in each case in form and substance satisfactory to IBM Credit, which are required to enable each Loan Party to authorize, or required in connection with, (a) the Agent execution, delivery or performance of this Agreement and each of the LendersOther Documents, and (b) the legality, validity, binding effect or enforceability of this Agreement and each of the Other Documents;
(H) amended and restated notes payable subordination executed by PFS in favor of IBM Credit in form and substance satisfactory to IBM Credit in its sole discretion ("Amended and Restated Notes Payable Subordination Agreement");
(I) Subordinated Demand Note in the amount of Six Million Five Hundred Thousand Dollars ($6,500,000) executed by Borrower and endorsed payable to IBM Credit;
(J) amended and restated collateralized guaranties executed by each of Holdings and PFS in favor of IBM Credit in form and substance satisfactory to IBM Credit in its sole discretion;
(K) amended and restated corporate guaranty executed by PFSweb in favor of IBM Credit in form and substance satisfactory to IBM Credit in its sole discretion.
(bL) A Note the amended and restated pledge by Holdings of one hundred percent (100%) of the stock of its Domestic Subsidiaries and sixty-five percent (65%) of the stock of each of its Subsidiaries incorporated outside the USA (the "Holdings Stock Pledge Agreement") along with undated stock powers and stock certificates with respect to the order shares of each Lender who requests a Note stock pledged in form and substance satisfactory to IBM Credit in its sole discretion;
(M) acknowledgment executed by PFS pursuant to Section 2.1(c).9-313(C) of the U.C.C. which acknowledgment shall be in form and substance satisfactory to IBM Credit in its sole discretion;
(c) Certified copies of (iN) the resolutions Notice of Assignment as defined in Section 9.3(A)(ii) executed by PFS in form and substance satisfactory to IBM Credit in its sole discretion;
(O) the Board Collateral Assignment of Directors Intercompany Note and Liens dated the date hereof between the Borrower and IBM Credit;
(P) IBM's consent to the Borrower assigning all of each Loan Party approving the Loan Documents to which it is a partyits right, title, and interest in and to the IBM Agreement as Collateral to secure the payment of all Obligations of Borrower to IBM Credit;
(iiQ) all documents evidencing other necessary corporate action and required governmental and third party approvalsabsence of any material adverse change in any Loan Party's or any Guarantor's condition (financial or otherwise), licenses and consents with respect to its operations, assets, income and/or prospects;
(R) UCC-1 financing statements for each Loan Document jurisdiction reasonably requested by IBM Credit executed by each of Holdings, PFS and the transactions contemplated thereby.
(d) A copy of the articles or certificate of incorporation of each Loan Party certified Borrower as of a recent date by the Secretary of State of the state of incorporation of such Loan Party, together with certificates of such official attesting to the good standing of each such Loan Party, and a copy of the certificate of incorporation and the By-Laws of each Loan Party certified as of the Effective Date by the Secretary or an Assistant Secretary of each such Loan Party.
(e) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of each officer of such Loan Party who has been authorized to execute and deliver any Loan Document or other document required hereunder to be executed and delivered by or on behalf of such Loan Party.
(f) Certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, listing all effective financing statements which name any Loan Party (under its present name and or previous name) as debtor, together with copies of such other financing statements (none of which shall cover the Collateral purported to be covered by such Amended and Restated Security Agreement except as otherwise permitted by the Loan Documents); and
(g) Evidence that the insurance required by the terms of the Collateral Documents and by Section 6.4 is in full force and effect.
(h) Executed copies of financing statements in appropriate form for filing under the Uniform Commercial Code of each jurisdiction as may be necessary to perfect the security interests purported contemplated by Section 4.1 of this Agreement and contemplated under the amended and restated collateralized guaranties referred to be created by the Collateral Documents.above;
(iS) Favorable opinions control or other agreements for all other deposit accounts, letter-of-credit rights, electronic chattel paper, inventory in the possession of counsel to third parties;
(T) all securities and commodities accounts containing investment property described in Attachment B;
(U) the Loan Partiesstatements, certificates, documents, instruments, financing statements, agreements and information set forth in substantially the form of EXHIBIT J, Attachment A and as to such other matters as any Lender or Issuer through the Agent may reasonably request, together with Attachment B;
(V) a certified copy of the opinions rendered by such firms with respect to the enforceability organization chart of the Securitization Documents and related matters accompanied by a letter to the effect that the Agent, the Lenders and the Issuer may rely thereon.
(j) A certificate, signed by a Responsible Officer of the Borrower, stating that each of the conditions specified in Sections 3.2(a), (b), (c) and (d) and 3.3Loan Parties;
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