CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of each Lender to make its initial Extension of Credit hereunder is subject to satisfaction of the following conditions precedent: (a) Unless waived by all Lenders (or by Administrative Agent with respect to immaterial matters or items specified in subsections (v) or (vi) below with respect to which Borrower has given assurances satisfactory to Administrative Agent that they will be delivered promptly following the Closing Date), Administrative Agent's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of Borrower, each dated on, or in the case of third-party certificates, recently before the Closing Date and each in form and substance satisfactory to Administrative Agent, Lenders and their legal counsel: (i) executed counterparts of this Agreement, sufficient in number for distribution to Administrative Agent, Lenders and Borrower; (ii) Notes executed by Borrower in favor of each Lender, each in a principal amount equal to such Lender's Commitment; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as Administrative Agent and any Lender may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer thereof; (iv) such evidence as Administrative Agent and any Lender may reasonably require to verify that Borrower is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in business, including certified copies of Borrower's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like; (v) a certificate signed by a Responsible Officer of Borrower certifying (A) that the representations and warranties made by Borrower herein, or which are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, are true and correct on and as of the Closing Date, (B) that Borrower is in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default shall have occurred and be continuing, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements which has a Material Adverse Effect; (vi) an opinion of counsel to Borrower in form and substance satisfactory to Administrative Agent and the Lenders; (vii) written evidence that the Existing Credit Agreement and all commitments thereunder have been or concurrently herewith are being terminated; and (viii) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or Requisite Lenders reasonably may require. (b) Any fees required to be paid on or before the Closing Date shall have been paid. (c) Unless waived by Administrative Agent, Borrower shall have paid all Attorney Costs of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Quantum Corp /De/)
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of each Lender to make its initial Extension of Credit hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by Administrative Agent with respect to immaterial matters or items specified in subsections (v) or (vi) below with respect to which Borrower has given assurances satisfactory to Administrative Agent that they will be delivered promptly following the Closing Date)and Lenders, Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of Borrower, each dated on, or in the case of third-party certificates, recently before the Closing Date and each in form and substance satisfactory to Administrative Agent, Lenders and their legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Administrative Agent, Lenders and Borrower;
(ii) original Notes executed by Borrower in favor of each Lender, each in a principal amount equal to such Lender's ’s Commitment;
(iii) original amendment to the Colorado Springs Deed of Trust;
(iv) original Fee Letter;
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as Administrative Agent and any Lender may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer thereof;
(ivvi) such evidence as Administrative Agent and any Lender may reasonably require to verify that Borrower is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in businessDelaware, California and Colorado, including certified copies of Borrower's ’s Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(vvii) a certificate signed by a Responsible Officer of Borrower certifying (A) that the representations and warranties made by Borrower herein, or which are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, herein are true and correct on and as of the Closing DateDate (except to the extent such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date), (B) that Borrower is in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default shall have occurred and be continuing, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements which has a Material Adverse Effect;
(viviii) an opinion of counsel to Borrower a certificate in form and substance satisfactory to Administrative Agent certifying that Borrower and its Subsidiaries on a consolidated basis held unrestricted cash (and cash equivalents) of $50,000,000 or more as of the Lenders;
(vii) written evidence that last day of the Existing month during which the initial Extension of Credit Agreement and all commitments thereunder have been or concurrently herewith are being terminatedis to be made; and
(viiiix) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or Requisite Lenders reasonably may require.
(b) If requested by Administrative Agent, Chicago Title Company shall be committed to issue an endorsement to the policy of title insurance issued in connection with the Original Credit Agreement that the priority and validity of the Colorado Springs Deed of Trust has not been and will not be impaired by this Agreement or the transactions contemplated hereby.
(c) Any fees required to be paid on or before the Closing Date shall have been paid.
(cd) Unless waived by Administrative Agent, Borrower shall have paid all Attorney Costs of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Quantum Corp /De/)
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of each Lender to make its initial Extension of Credit hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by Administrative Agent with respect to immaterial matters or items specified in subsections (v) or (vi) below with respect to which Borrower has given assurances satisfactory to Administrative Agent that they will be delivered promptly following the Closing Date)and Lenders, Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of Borrowerthe applicable Credit Party, each dated on, or in the case of third-party certificates, recently before the Closing Date and each in form and substance satisfactory to Administrative Agent, Lenders and their legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Administrative Agent, Lenders and Borrower;
(ii) the Notes executed by Borrower in favor of each Lender, each in a principal amount equal to such Lender's ’s Commitment;
(iii) the Multi-Party Guaranty;
(iv) the General Security Agreement, together with such certificates, stock powers, registrations and other supporting documents as Administrative Agent shall reasonably require;
(v) the Intellectual Property Security Agreement together with such certificates, stock powers, registrations and other supporting documents as Administrative Agent shall reasonably require;
(vi) the UK Pledge Agreement together with such certificates, stock powers, registrations and other supporting documents as Administrative Agent shall reasonably require;
(vii) the Mexican Pledge Agreement together with such certificates, stock powers, registrations and other supporting documents as Administrative Agent shall reasonably require;
(viii) the original Fee Letter;
(ix) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as Administrative Agent and any Lender may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer thereof;
(ivx) such evidence as Administrative Agent and any Lender may reasonably require to verify that Borrower each Credit Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction such jurisdiction(s) as specified in which it is required to be qualified to engage in businessSection 5.1, including certified copies of Borrower's Organization Documents, ’s certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(vxi) a certificate signed by a Responsible Officer of Borrower certifying each Credit Party (A) that the representations and warranties made by Borrower herein, or which are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, herein are true and correct on and as of the Closing DateDate (except to the extent such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date), (B) that Borrower is in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default shall have occurred and be continuing, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements which has a Material Adverse Effect;
(vixii) an opinion opinions of counsel to Borrower in substantially the form of Exhibit H;
(xiii) with respect to the property owned or leased by Borrower and substance each Guarantor Borrower shall have caused to be delivered to Administrative Agent (i) the results of Uniform Commercial Code lien searches for the states of California and Delaware and any other state where a Guarantor is organized or has its chief executive office, satisfactory to Administrative Agent and the Lenders;
, and (viiii) written evidence that the Existing Credit Agreement and Uniform Commercial Code termination statements reflecting termination of all commitments thereunder have been or concurrently herewith are being terminatedfinancing statements previously filed by any Person except as expressly permitted hereunder; and
(viiixiv) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or Requisite Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Administrative Agent, Borrower shall have paid all Attorney Costs of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and Administrative Agent).
(d) Administrative Agent and its counsel shall have reviewed any and all outstanding litigation involving Borrower or its Subsidiaries and shall be satisfied with the same, in its sole and absolute discretion.
Appears in 1 contract
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of each Lender to make its the initial Extension of Credit hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by Administrative Agent with respect to immaterial matters or items specified in subsections (v) or (vi) below with respect to which Borrower has given assurances satisfactory to Administrative Agent that they will be delivered promptly following the Closing Date)Lender, Administrative AgentLender's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of Borrowerthe signing Borrower Party, each dated on, or in the case of third-party certificates, recently before the Closing Date and each in form and substance satisfactory to Administrative Agent, Lenders Lender and their its legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Administrative Agent, Lenders Lender and Borrower;
(ii) Notes if requested by Lender, a Note executed by Borrower in favor of each Lender, each in a principal amount equal to such Lender's the Commitment;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower Party as Administrative Agent and any Lender may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer thereof;
(iv) the articles or certificate of incorporation or organization of Borrower and CPK Management Company as in effect on the Closing Date, certified by the Secretary of State of California as of a recent date and the bylaws of Borrower and CPK Management Company, Inc as in effect on the Closing Date, certified by the Secretary or Assistant Secretary of Borrower and CPK Management Company, Inc, respectively, as of the Closing Date; provided, however, that such evidence as Administrative Agent articles and any bylaws need not be delivered -------- ------- hereunder to the extent not different from those previously delivered to Lender may reasonably require to verify that Borrower is duly organized or formed, validly existing, in connection with the Existing Credit Facility,
(v) a good standing certificate for Borrower and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in businessCPK Management Company, including certified copies Inc from the Secretary of Borrower's Organization Documents, certificates State of good standing and/or qualification to engage in business, tax clearance certificates, and the likeCalifornia as of a recent date;
(vvi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.01(c) and 4.01(d) --------------- ------ have been satisfied;
(vii) an opinion of counsel to Borrower in form and substance satisfactory to Lender;
(viii) the Master Subsidiary Guaranty executed by each Domestic Subsidiary;
(ix) evidence that the Existing Credit Facility and all loan documents related thereto are being terminated as of the Closing Date, all collateral will be released thereunder and all accrued and outstanding fees, interest and other amounts owing under the Existing Credit Facility are being paid in full; and
(x) such other assurances, certificates, documents, consents or opinions as Lender reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) The representations and warranties made by Borrower herein, or which are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, are true and shall be correct in all material respects on and as of the Closing Date, .
(Bd) that Each Borrower is Party shall be in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default shall have occurred and be continuing, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements which has a Material Adverse Effect;
(vi) an opinion of counsel to Borrower in form and substance satisfactory to Administrative Agent and the Lenders;
(vii) written evidence that the Existing Credit Agreement and all commitments thereunder have been or concurrently herewith are being terminated; and
(viii) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or Requisite Lenders reasonably may require.
(be) Any fees required to be paid Other than litigation described on Schedule 5.05 hereto, the absence ------------- of any action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or governmental authority that purports (i) to materially and adversely affect Borrower or its Subsidiaries, or (ii) to affect any transaction contemplated hereby or the Closing Date shall have been paidability of Borrower and its Subsidiaries under the Loan Documents to perform their respective obligations thereunder.
(cf) Unless waived by Administrative AgentLender, Borrower shall have paid all Attorney Costs of Administrative Agent Lender to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and Administrative AgentLender).
Appears in 1 contract
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of each Lender to make its initial Extension of Credit hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by Administrative Agent with respect to immaterial matters or items specified in subsections (v) or (vi) below with respect to which Borrower has given assurances satisfactory to Administrative Agent that they will be delivered promptly following the Closing Date)and Lenders, Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of Borrower, each dated on, or in the case of third-party certificates, recently before the Closing Quantum Corporation Term Loan Agreement Date and each in form and substance satisfactory to Administrative Agent, Lenders and their legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Administrative Agent, Lenders and Borrower;
(ii) executed original Notes (to the extent so requested by any Lender) executed by Borrower in favor of each such Lender, each in a principal amount equal to such Lender's ’s Commitment;
(iii) executed original counterparts of each of the Security Documents together with all filings deemed necessary or desirable by the Administrative Agent in order to perfect the Liens created thereby;
(iv) original Fee Letter;
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as Administrative Agent and any Lender may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer thereof;
(ivvi) such evidence as Administrative Agent and any Lender may reasonably require to verify that Borrower is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in businessDelaware and California, including certified copies of Borrower's ’s Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(vvii) a certificate signed by a Responsible Officer of Borrower certifying (A) that the representations and warranties made by Borrower herein, or which are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, herein are true and correct on and as of the Closing DateDate (except to the extent such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date), (B) that Borrower is in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default shall have occurred and be continuing, and (C) that there has been no event or circumstance ADIC Material Adverse Change since the date of the Audited Financial Statements which has a Material Adverse EffectStatements;
(viviii) an opinion of counsel to Borrower a certificate in form and substance satisfactory to Administrative Agent certifying that (a) Borrower and its Subsidiaries on a consolidated basis held unrestricted cash (and cash equivalents) of $50,000,000 or more as of the Lenders;last day of the month during which the initial Extension of Credit is to be made, and (b) Borrower and its Subsidiaries had a minimum Consolidated EBITDA (based upon (1) Borrower’s and its Subsidiaries Consolidated EBITDA for the twelve (12) month period ending March 31, 2006 and (2) ADIC’s and its Subsidiaries Consolidated EBITDA for the twelve (12) month period ending April 30, 2006) of at least $100,000,000; Quantum Corporation Term Loan Agreement
(vii) written evidence that the Existing Credit Agreement and all commitments thereunder have been or concurrently herewith are being terminated; and
(viiiix) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender Agent or Requisite Lenders reasonably may require.
(b) the Administrative Agent shall have received:
(i) evidence, reasonably satisfactory to the Administrative Agent, that the Borrower has completed, or concurrently with the initial credit extension hereunder will complete, the Related Transactions in accordance with the terms of the Merger Documents (without any material amendment thereto or waiver thereunder unless consented to by the Administrative Agent). All material and necessary authorizations, consents, approvals, exceptions or other actions by or notices to or filings with any court or administrative or governmental body or other Person required in connection with the execution, delivery or performance of the Merger Documents or the consummation of the Related Transaction shall be final and in full force and effect and shall be in form and substance satisfactory to Administrative Agent. Administrative Agent shall have received a copy of the Merger Documents and all instruments, documents and agreements related thereto, certified in an Officer’s Certificate, dated the Closing Date, as correct and complete;
(ii) evidence reasonably satisfactory to it that (1) the sum of (aa) the aggregate purchase price under the Related Transaction, plus (bb) the amount required to refinance all existing Indebtedness of the Borrower shall not exceed $800,000,000, (2) the aggregate fees and expenses payable by the Borrower with respect to the Related Transactions will not exceed $40,000,000, and (3) there has been no Material Adverse Effect with respect to the Borrower since December 31, 2005 and with respect to ADIC since December 31, 2005; and
(iii) pro forma/projected financial statements of the Borrower and a pro forma calculation of Consolidated EBITDA, in each case giving effect to the Related Transactions, the funding of the Indebtedness under the First Lien Credit Agreement and the funding of the Term Loans on the Closing Date.
(c) Any fees required to be paid on or before the Closing Date shall have been paid.
(cd) Unless waived by Administrative Agent, Borrower shall have paid all Attorney Costs of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and Administrative Agent).
Appears in 1 contract
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of each Lender to make its the initial Extension of Credit hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by Administrative Agent with respect to immaterial matters or items specified in subsections (v) or (vi) below with respect to which Borrower has given assurances satisfactory to Administrative Agent that they will be delivered promptly following Lenders, the Closing Date), Administrative Agent's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of BorrowerOfficer, each dated on, on or in the case of third-party certificates, recently before about the Closing Date and each in form and substance satisfactory to the Administrative Agent, Lenders Agent and their its legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Administrative Agent, Lenders and Borrower;
(ii) Committed Loan Notes executed by Borrower in favor of each Lender, each in a principal amount equal to such that Lender's Commitment;
(iii) the Collateral Documents;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as Administrative Agent and any Lender may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer thereof;
(ivv) such evidence as Administrative Agent and any Lender may reasonably require to verify that Borrower and each Subsidiary, any stock of which will be pledged to Lenders, is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in business, including certified copies of Borrower's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(vvi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.01(c) and ---------------- 4.01(d) have been satisfied, (B) that there has been no event or ------- circumstance since the date of the Audited Financial Statements which has a Material Adverse Effect, and (C) that the Audited Financial Statements fairly present the financial position of Borrower and its subsidiaries as of December 31, 1998 and fairly present the result of their operations and their cash flows for the period ending on such date;
(vii) an opinion of counsel to Borrower in form and substance satisfactory to Administrative Agent, and such opinions of foreign counsel regarding the pledge of foreign stock as collateral as shall be satisfactory to Administrative Agent;
(viii) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or the Requisite Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) The representations and warranties made by Borrower herein, or which are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, are true and shall be correct on and as of the Closing Date, .
(Bd) that Borrower is shall be in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default shall have occurred and be continuing, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements which has a Material Adverse Effect;
(vi) an opinion of counsel to Borrower in form and substance satisfactory to Administrative Agent and the Lenders;
(vii) written evidence that the Existing Credit Agreement and all commitments thereunder have been or concurrently herewith are being terminated; and
(viii) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or Requisite Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(ce) Unless waived by Administrative Agent, Borrower shall have paid all Attorney Costs of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Flir Systems Inc)
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of each Lender to make its initial Extension of Credit hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by Administrative Agent with respect to immaterial matters or items specified in subsections (v) or (vi) below with respect to which Borrower has given assurances satisfactory to Administrative Agent that they will be delivered promptly following the Closing Date), Administrative Agent's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of Borrower, each dated on, or in the case of third-party certificates, recently before the Closing Date and each in form and substance satisfactory to Administrative Agent, Lenders and their legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Administrative Agent, Lenders and Borrower;
(ii) Notes executed by Borrower in favor of each Lender, each in a principal amount equal to such Lender's Commitment;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as Administrative Agent and any Lender may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer thereof;
(iv) such evidence as Administrative Agent and any Lender may reasonably require to verify that Borrower is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in business, including certified copies of Borrower's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(v) a certificate signed by a Responsible Officer of Borrower certifying (A) that the representations and warranties made by Borrower herein, or which are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, are true and correct on and as of the Closing Date, (B) that Borrower is in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default shall have occurred and be continuing, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements which has a Material Adverse Effect;
(vi) an opinion of counsel to Borrower in form and substance satisfactory to Administrative Agent and the Lenders;
(vii) written evidence that the Existing Credit Agreement and all commitments thereunder have been or concurrently herewith are being terminated; and
(viii) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or Requisite Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Administrative Agent, Borrower shall have paid all Attorney Costs of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final -------- settling of accounts between Borrower and Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Quantum Corp /De/)
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of each Lender to make its initial Extension of Credit hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by Administrative Agent with respect to immaterial matters or items specified in subsections (v) or (vi) below with respect to which Borrower has given assurances satisfactory to Administrative Agent that they will be delivered promptly following the Closing Date)and Lenders, Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of Borrower, each dated on, or in the case of third-party certificates, recently before the Closing Date and each in form and substance satisfactory to Administrative Agent, Lenders and their legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Administrative Agent, Lenders and Borrower;
(ii) the Notes executed by Borrower in favor of each Lender, each in a principal amount equal to such Lender's ’s Commitment;
(iii) the original General Security Agreement;
(iv) the Stock Pledge Agreement in the form attached as Exhibit E hereto;
(v) the original Fee Letter;
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as Administrative Agent and any Lender may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer thereof;
(ivvii) such evidence as Administrative Agent and any Lender may reasonably require to verify that Borrower is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in businessDelaware and California, including certified copies of Borrower's Organization Documents, ’s certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(vviii) a certificate signed by a Responsible Officer of Borrower certifying (A) that the representations and warranties made by Borrower herein, or which are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, herein are true and correct on and as of the Closing DateDate (except to the extent such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date), (B) that Borrower is in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default shall have occurred and be continuing, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements which has a Material Adverse Effect;
(viix) an opinion opinions of counsel to Borrower and any Subsidiary in form and substance satisfactory to Administrative Agent;
(x) a certificate in form and substance satisfactory to Administrative Agent and the Lenders;
(vii) written evidence certifying that the Existing Consolidated Cash Balance of Borrower and its Subsidiaries equaled $25,000,000 or more as of the last day of the month prior to the month during which the initial Extension of Credit Agreement and all commitments thereunder have been or concurrently herewith are being terminatedis to be made; and
(viiixi) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or Requisite Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Administrative Agent, Borrower shall have paid all Attorney Costs of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and Administrative Agent).
Appears in 1 contract
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of each Lender to make its initial Extension of Credit hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by Administrative Agent with respect to immaterial matters or items specified in subsections (viv) or (viv) below with respect to which Borrower has given assurances satisfactory to Administrative Agent that they will be delivered promptly following the Closing Date), Administrative Agent's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of Borrowerthe signing Credit Party, each dated on, or in the case of third-party certificates, recently before the Closing Date and each in form and substance satisfactory to Administrative Agent, Lenders Agent and their its legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Administrative Agent, Lenders and Borrower;
(ii) Committed Loan Notes executed by Borrower in favor of each LenderLender requesting a Committed Loan Note, each in a principal amount equal to such that Lender's Commitment;
(iii) Competitive Loan Notes executed by Borrower in favor of each Lender requesting a Competitive Loan Note, each in the principal amount of the Competitive Loan Limit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Credit Party as Administrative Agent and any Lender may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer thereof;
(ivv) such evidence as Administrative Agent and any Lender may reasonably require to verify that Borrower each Credit Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in business, including certified copies of Borrowereach Credit Party's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(vvi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in SECTIONS 4.01(c) and (d) have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements which has a Material Adverse Effect;
(vii) an opinion of counsel to Borrower and Guarantors substantially in the form of EXHIBIT F hereto;
(viii) written evidence that the Existing Credit Facility has been or will be concurrently terminated and all Liens securing obligations under the Existing Credit Facility has been or will be concurrently released;
(ix) such evidence as Administrative Agent may reasonably require to verify the status of the Rite Aid Acquisition, together with a copy of the Rite Aid Acquisition Agreement accompanied by a certificate signed by a Responsible Officer of the Borrower, certifying that such copy is true, correct, and complete, that such agreement remains in full force and effect and, except as set forth in such certificate, has not been modified or amended;
(x) the Guaranty, executed by each Subsidiary of Borrower, if any, required to be a party thereto on the Closing Date pursuant to SECTION 6.13; and
(xi) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Letter of Credit Issuer or the Requisite Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) The representations and warranties made by Borrower herein, or which are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, are true and shall be correct on and as of the Closing Date, .
(Bd) that Borrower is Each Credit Party shall be in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default shall have occurred and be continuing, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements which has a Material Adverse Effect;
(vi) an opinion of counsel to Borrower in form and substance satisfactory to Administrative Agent and the Lenders;
(vii) written evidence that the Existing Credit Agreement and all commitments thereunder have been or concurrently herewith are being terminated; and
(viii) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or Requisite Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(ce) Unless waived by Administrative Agent, Borrower shall have paid all Attorney Costs of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and Administrative Agent).
Appears in 1 contract
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of each Lender to make its initial Extension of Credit hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by Administrative Agent with respect to immaterial matters or items specified in subsections (v) or (vi) below with respect to which Borrower has given assurances satisfactory to Administrative Agent that they will be delivered promptly following the Closing Date)Lender, Administrative Agent's Lender’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of Borrower, each dated on, or in the case of third-party certificates, recently before the Closing Date and each in form and substance satisfactory to Administrative Agent, Lenders Lender and their its legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Administrative Agent, Lenders Lender and Borrower;
(ii) Notes the Note executed by Borrower in favor of each Lender, each Lender in a principal amount equal to such Lender's the Commitment;
(iii) the original General Security Agreement;
(iv) the Stock Pledge Agreement in the form attached as Exhibit E hereto;
(v) release of all liens and termination of all financing statements filed in connection with Xxxxx Fargo Foothill, Inc. loan to Borrower;
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as Administrative Agent and any Lender may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer thereof;
(ivvii) such evidence as Administrative Agent and any Lender may reasonably require to verify that Borrower is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in businessDelaware and California, including certified copies of Borrower's Organization Documents, ’s certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(vviii) a certificate signed by a Responsible Officer of Borrower certifying (A) that the representations and warranties made by Borrower herein, or which are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, herein are true and correct on and as of the Closing DateDate (except to the extent such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date), (B) that Borrower is in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default shall have occurred and be continuing, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements which has a Material Adverse Effect;
(viix) an opinion opinions of counsel to Borrower and any Subsidiary in form and substance satisfactory to Administrative Agent and the LendersLender;
(viix) written evidence a certificate in form and substance satisfactory to Lender certifying that Borrower and its Subsidiaries on a consolidated basis held unrestricted cash (and cash equivalents) of $10,000,000 or more as of the Existing last day of the month prior to the month during which the initial Extension of Credit Agreement and all commitments thereunder have been or concurrently herewith are being terminatedis to be made; and
(viiixi) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or Requisite Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Administrative AgentLender, Borrower shall have paid all Attorney Costs of Administrative Agent Lender to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and Administrative AgentLender).
Appears in 1 contract
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of each Lender to make its the initial Extension of Credit hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived Except as otherwise specified by all Lenders (or by Administrative Agent with respect to immaterial matters or items specified in subsections (v) or (vi) below with respect to which Borrower has given assurances satisfactory to Administrative Agent that they will be delivered promptly following the Closing Date)Lender, Administrative AgentLender's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of BorrowerOfficer, each dated on, or in the case of third-party certificates, recently before the Closing Date and each in form and substance satisfactory to Administrative Agent, Lenders Lender and their its legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Administrative Agent, Lenders Lender and Borrower;
(ii) Notes executed by Borrower in favor of each Lender, each in a principal amount equal to such Lender's Commitment;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as Administrative Agent and any Lender may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer thereof;
(iviii) such evidence as Administrative Agent and any Lender may reasonably require to verify that Borrower is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in business, including certified copies of Borrower's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance status certificates, and the like;
(viv) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.01(e) and (f) have been satisfied, and (B) that there has been no event or circumstance since December 31, 2001 which has a Material Adverse Effect;
(v) an opinion of counsel to Borrower substantially in the form of Exhibit E; and
(vi) such other assurances, certificates, documents, consents or opinions as Lender reasonably may require.
(b) Borrower shall have terminated any commitments to lend or make other extensions of credit under the Existing Credit Agreement, and directed that the proceeds of the initial Extension of Credit hereunder shall be applied to repay in full all Indebtedness outstanding under the Existing Credit Agreement pursuant to a notice of termination substantially in the form of Exhibit F.
(c) Lender shall have received evidence satisfactory to it that Borrower shall have taken or caused to be taken all such actions, executed and delivered or caused to be executed and delivered all such agreements, documents and instruments, and made or caused to be made all such filings and recordings (other than the filing or recording of items described in clause (ii) below) that may be necessary or, in the opinion of Lender, desirable in order to create in favor of Lender a valid and (upon such filing and recording) perfected First Priority Lien in the entire Collateral. Such actions shall include the following:
(i) Delivery to Lender of (a) the results of a recent search, by a Person satisfactory to Lender, of all effective UCC financing statements and fixture filings and all judgment and tax lien filings which may have been made with respect to any personal or mixed property of any Loan Party, together with copies of all such filings disclosed by such search, and (b) UCC termination statements duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements or fixture filings disclosed in such search (other than any such financing statements or fixture filings in respect of Liens permitted to remain outstanding pursuant to the terms of this Agreement);
(ii) Delivery to Lender of UCC financing statements duly executed by Borrower with respect to all Collateral of Borrower, for filing in all jurisdictions as may be necessary or, in the opinion of Lender, desirable to perfect the security interests created in such Collateral pursuant to the Collateral Documents; and
(iii) Evidence of the deposit of Cash and Cash Equivalents in an aggregate amount of $90,000,000 in an account or accounts maintained by Borrower with Lender or an Affiliate of Lender and the completion of all other actions necessary to perfect Liens in respect of such Cash and Cash Equivalents pursuant to the Collateral Documents.
(d) Any fees required to be paid on or before the Closing Date shall have been paid.
(e) The representations and warranties made by Borrower herein, or which are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, are true and shall be correct on and as of the Closing Date, .
(Bf) that Borrower is shall be in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default shall have occurred and be continuing, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements which has a Material Adverse Effect;
(vi) an opinion of counsel to Borrower in form and substance satisfactory to Administrative Agent and the Lenders;
(vii) written evidence that the Existing Credit Agreement and all commitments thereunder have been or concurrently herewith are being terminated; and
(viii) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or Requisite Lenders reasonably may require.
(bg) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Administrative Agent, Borrower shall have paid all Attorney Costs of Administrative Agent Lender to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and Administrative AgentLender).
(h) Lender shall have received a Request for Initial Extension of Credit on or prior to the Closing Date.
Appears in 1 contract
Samples: Credit Agreement (Broadcom Corp)
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of each Lender to make its initial Extension of Credit hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by Administrative Agent with respect to immaterial matters or items specified in subsections (v) or (vi) below with respect to which Borrower has given assurances satisfactory to Administrative Agent that they will be delivered promptly following the Closing Date)and Lenders, Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of Borrower, each dated on, or in the case of third-party certificates, recently before the Closing Date and each in form and substance satisfactory to Administrative Agent, Lenders and their legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Administrative Agent, Lenders and Borrower;; Quantum Corporation Credit Agreement
(ii) executed original Notes (to the extent so requested by any Lender) executed by Borrower in favor of each such Lender, each in a principal amount equal to such Lender's ’s Commitment;
(iii) executed original counterparts of each of the Security Documents together with all filings deemed necessary or desirable by the Administrative Agent in order to perfect the Liens created thereby;
(iv) original Fee Letter;
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as Administrative Agent and any Lender may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer thereof;
(ivvi) such evidence as Administrative Agent and any Lender may reasonably require to verify that Borrower is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in businessDelaware and California, including certified copies of Borrower's ’s Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(vvii) a certificate signed by a Responsible Officer of Borrower certifying (A) that the representations and warranties made by Borrower herein, or which are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, herein are true and correct on and as of the Closing DateDate (except to the extent such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date), (B) that Borrower is in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default shall have occurred and be continuing, and (C) that there has been no event or circumstance ADIC Material Adverse Change since the date of the Audited Financial Statements which has a Material Adverse EffectStatements;
(viviii) an opinion of counsel to Borrower a certificate in form and substance satisfactory to Administrative Agent certifying that (a) Borrower and its Subsidiaries on a consolidated basis held unrestricted cash (and cash equivalents) of $50,000,000 or more as of the Lenderslast day of the month during which the initial Extension of Credit is to be made, and (b) Borrower and its Subsidiaries had a minimum Consolidated EBITDA (based upon (1) Borrower’s and its Subsidiaries Consolidated EBITDA for the twelve (12) month period ending March 31, 2006 and (2) ADIC’s and its Subsidiaries Consolidated EBITDA for the twelve (12) month period ending April 30, 2006) of at least $100,000,000;
(viiix) written evidence that the Existing Term Loans shall have received a rating from Xxxxx’x and S&P at least five (5) days prior to the Closing Date; and Quantum Corporation Credit Agreement and all commitments thereunder have been or concurrently herewith are being terminated; andAgreement
(viiix) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or Requisite Lenders reasonably may require.
(b) the Administrative Agent shall have received:
(i) evidence, reasonably satisfactory to the Administrative Agent, that the Borrower has completed, or concurrently with the initial credit extension hereunder will complete, the Related Transactions in accordance with the terms of the Merger Documents (without any material amendment thereto or waiver thereunder unless consented to by the Administrative Agent). All material and necessary authorizations, consents, approvals, exceptions or other actions by or notices to or filings with any court or administrative or governmental body or other Person required in connection with the execution, delivery or performance of the Merger Documents or the consummation of the Related Transaction shall be final and in full force and effect and shall be in form and substance satisfactory to Administrative Agent. Administrative Agent shall have received a copy of the Merger Documents and all instruments, documents and agreements related thereto, certified in an Officer’s Certificate, dated the Closing Date, as correct and complete;
(ii) evidence reasonably satisfactory to it that (1) the sum of (aa) the aggregate purchase price under the Related Transaction, plus (bb) the amount required to refinance all existing Indebtedness of the Borrower shall not exceed $800,000,000, (2) the aggregate fees and expenses payable by the Borrower with respect to the Related Transactions will not exceed $40,000,000, and (3) there has been no Material Adverse Effect with respect to the Borrower since December 31, 2005 and with respect to ADIC since December 31, 2005; and
(iii) pro forma/projected financial statements of the Borrower and a pro forma calculation of Consolidated EBITDA, in each case giving effect to the Related Transactions, the funding of the Indebtedness under the Second Lien Loan Agreement and the funding of the Term Loans and Revolving Loans on the Closing Date.
(c) Any fees required to be paid on or before the Closing Date shall have been paid.
(cd) Unless waived by Administrative Agent, Borrower shall have paid all Attorney Costs of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and Administrative Agent). Quantum Corporation Credit Agreement
(e) Administrative Agent, Second Lien Agent, Control Agent, Borrower and the Guarantors shall have executed and delivered the Intercreditor Agreement.
(f) After giving effect to the Related Transactions and the closing and fundings under this Agreement and the Second Lien Loan Agreement, there shall be no more than $95,000,000 of Revolving Outstandings on the Closing Date.
Appears in 1 contract
Samples: Credit Agreement (Quantum Corp /De/)
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of each Lender to make its initial Extension of Credit hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by Administrative Agent with respect to immaterial matters or items specified in subsections (v) or (vi) below with respect to which Borrower has given assurances satisfactory to Administrative Agent that they will be delivered promptly following the Closing Date)and Lenders, Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of Borrower, each dated on, or in the case of third-party certificates, recently before the Closing Date and each in form and substance satisfactory to Administrative Agent, Lenders and their legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Administrative Agent, Lenders and Borrower;
(ii) Notes executed by Borrower in favor of each Lender, each in a principal amount equal to such Lender's ’s Commitment;
(iii) The original Colorado Springs Deed of Trust;
(iv) The original Stock Pledge Agreement;
(v) The original Intellectual Property Security Agreement;
(vi) The original General Security Agreement;
(vii) The original Deposit Account Control Agreements among Borrower, Administrative Agent (for the account of each Lender in accordance with its Pro Rata Share) and Union Bank of California, N.A. and Bank of America, respectively;
(viii) The original Fee Letter;
(ix) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as Administrative Agent and any Lender may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer thereof;
(ivx) such evidence as Administrative Agent and any Lender may reasonably require to verify that Borrower is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in businessDelaware, California, Colorado and Texas, including certified copies of Borrower's ’s Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(vxi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the representations and warranties made by Borrower herein, or which are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, herein are true and correct on and as of the Closing DateDate (except to the extent such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date), (B) that Borrower is in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default shall have occurred and be continuing, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements which has a Material Adverse Effect;
(vixii) an opinion opinions of counsel to Borrower in form and substance satisfactory to Administrative Agent and the LendersAgent;
(viixiii) written evidence that the Existing Credit Agreement and all commitments thereunder have been or concurrently herewith are being terminated; and;
(viiixiv) a certificate in form and substance satisfactory to Administrative Agent certifying that Borrower and its Subsidiaries on a consolidated basis held unrestricted cash (and cash equivalents) of $100,000,000 or more as of the last day of the month during which the initial Extension of Credit is to be made.
(xv) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or Requisite Lenders reasonably may require.
(b) Chicago Title Company shall be committed to issue the following policies of title insurance upon the Closing Date: (A) an ALTA (1992) Loan Policy insuring Administrative Agent that the Lien of the of the Colorado Springs Deed of Trust is a first and primary Lien in Borrower's leasehold interest in the Colorado Springs Real Property Security, subject only to the Permitted Exceptions, and (B) an ALTA (1992) Leasehold Policy insuring leasehold title in Borrower, such policies each in an amount not less than $50,000,000 and to be reasonably satisfactory to Administrative Agent and the Lenders, with extended coverage, access, tax parcel, variable rate, future advances, usury, comprehensive, doing business, mechanics liens and zoning endorsements and such other endorsements as and to the extent available in such jurisdiction where the Colorado Springs Real Property Security is located, if requested by Administrative Agent.
(c) Any fees required to be paid on or before the Closing Date shall have been paid.
(cd) Unless waived by Administrative Agent, Borrower shall have paid all Attorney Costs of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Quantum Corp /De/)
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of each Lender to make its the initial Extension of Credit hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived Except as otherwise specified by all Lenders (or by Administrative Agent with respect to immaterial matters or items specified in subsections (v) or (vi) below with respect to which Borrower has given assurances satisfactory to Administrative Agent that they will be delivered promptly following the Closing Date)Lender, Administrative AgentLender's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Borrower, each dated on, or in the case of third-party certificates, recently before the Closing Date and each in form and substance satisfactory to Administrative Agent, Lenders Lender and their its legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Administrative Agent, Lenders Lender and Borrower;
(ii) Notes executed by Borrower in favor of each Lender, each in a principal amount equal to such Lender's Commitment;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as Administrative Agent and any Lender may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer thereof;
(iviii) such evidence as Administrative Agent and any Lender may reasonably require to verify that Borrower is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in business, including certified copies of Borrower's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance status certificates, and the like;
(viv) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.01(c) and (d) have been satisfied, and (B) that there has been no event or circumstance since June 30, 2001 which has a Material Adverse Effect;
(v) an opinion of counsel to Borrower substantially in the form of Exhibit C; and
(vi) such other assurances, certificates, documents, consents or opinions as Lender reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) The representations and warranties made by Borrower herein, or which are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, are true and shall be correct on and as of the Closing Date, .
(Bd) that Borrower is shall be in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default shall have occurred and be continuing, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements which has a Material Adverse Effect;
(vi) an opinion of counsel to Borrower in form and substance satisfactory to Administrative Agent and the Lenders;
(vii) written evidence that the Existing Credit Agreement and all commitments thereunder have been or concurrently herewith are being terminated; and
(viii) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or Requisite Lenders reasonably may require.
(be) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Administrative Agent, Borrower shall have paid all Attorney Costs of Administrative Agent Lender to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and Administrative AgentLender).
Appears in 1 contract
Samples: Credit Agreement (Broadcom Corp)
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of each Lender to make its initial Extension of Credit hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by Administrative Agent with respect to immaterial matters or items specified in subsections (v) or (vi) below with respect to which Borrower has given assurances satisfactory to Administrative Agent that they will be delivered promptly following the Closing Date)and Lenders, Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of Borrower, each dated on, or in the case of third-party certificates, recently before the Closing Date and each in form and substance satisfactory to Administrative Agent, Lenders and their legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Administrative Agent, Lenders and Borrower;
(ii) executed originals of the Notes (to the extent so requested by any Lender) executed by Borrower in favor of each Lender, each in a principal amount equal to such Lender's ’s Commitment;
(iii) executed counterparts of the General Security Agreement in the form attached as Exhibit F hereto from each of Borrower and each Guarantor;
(iv) executed counterparts of the Stock Pledge Agreement in the form attached as Exhibit E hereto;
(v) executed counterparts of the Guaranty in the form attached as Exhibit G hereto from each Guarantor;
(vi) the original Fee Letter and the original Disclosure Letter;
(vii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower (and each Guarantor) as Administrative Agent and any Lender may require to establish the identities of and verify the authority and capacity of each such Responsible Officer thereof authorized to act as a Responsible Officer thereof;; Credit Agreement Epicor Software Corporation
(ivviii) such evidence as Administrative Agent and any Lender may reasonably require to verify that Borrower (and each Guarantor) is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in businessDelaware and California, including certified copies of Borrower's Organization Documents, ’s (and each Guarantor’s) certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(vix) a certificate signed by a Responsible Officer of Borrower certifying (A) that the representations and warranties made by Borrower herein, or which are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, herein are true and correct on and as of the Closing DateDate (except to the extent such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date), (B) that Borrower is in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default shall have occurred and be continuingcontinuing or result from such proposed Extension of Credit, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements which has a Material Adverse Effect;
(vix) an opinion opinions of counsel to Borrower and any Subsidiary in form and substance satisfactory to Administrative Agent and the LendersAgent;
(viixi) written evidence that the Existing Credit Agreement Term Loans shall have received a rating of at least “B1” from Xxxxx’x and all commitments thereunder have been or concurrently herewith are being terminated“B+” from S&P at least five (5) days prior to the Closing Date; and
(viiixii) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or Requisite Lenders reasonably may require.
(b) Any fees (including, without limitation, those set forth in the Fee Letter) required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Administrative Agent, Borrower shall have paid all Attorney Costs of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and Administrative Agent).
Appears in 1 contract
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of each Lender to make its the initial Extension of Credit hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by Administrative Agent with respect to immaterial matters or items specified in subsections (viv) or (viv) below with respect to which Borrower has given assurances satisfactory to Administrative Agent that they will be delivered promptly following the Closing Date), Administrative Agent's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of Borrowerthe signing Borrower Party, each dated on, or in the case of third-party certificates, recently before the Closing Date and each in form and substance satisfactory to Administrative Agent, Lenders Agent and their its legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Administrative Agent, Lenders and Borrower;
(ii) Notes A Revolving Note and a Term Note executed by Borrower in favor of each LenderLender requesting Notes, each in a principal amount equal to such that Lender's Revolving Commitment and Term Commitment, respectively;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower Party as Administrative Agent and any Lender may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer thereof;
(iv) such evidence the articles or certificate of incorporation or organization of Borrower and CPK Management Company as Administrative Agent and any Lender may reasonably require to verify that Borrower is duly organized or formedin effect on the Closing Date, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in business, including certified copies by the Secretary of Borrower's Organization Documents, certificates State of good standing and/or qualification to engage in business, tax clearance certificates, California as of a recent date and the like;bylaws of Borrower and CPK Management Company, Inc as in effect on the Closing Date, certified by the Secretary or Assistant Secretary of Borrower and CPK Management Company, Inc, respectively, as of the Closing Date; and
(v) a good standing certificate for Borrower and CPK Management Company, Inc from the Secretary of State of California as of a recent date.
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.01(c) and ---------------- 4.01(d) have been satisfied, and (B) that there has been no event or ------- circumstance since the date of the Audited Financial Statements which has a Material Adverse Effect;
(vii) an opinion of counsel to Borrower in form and substance satisfactory to Administrative Agent and Lenders;
(viii) the Master Subsidiary Guaranty executed by each Domestic Subsidiary;
(ix) the Collateral Documents, executed by Borrower and each applicable Domestic Subsidiary, in appropriate form for filing or recording where necessary, together with:
(A) the Pledge Agreement, and all Pledged Collateral, together with, as applicable, undated stock transfer powers executed in blank for each certificate representing Pledged Collateral so delivered;
(B) the Security Agreement, and all Collateral and transfer instruments required to be delivered thereunder;
(C) such financing statements on Form UCC-1 executed by Borrower and each Subsidiary as Administrative Agent may request;
(D) such Security Agreement Supplements as Administrative Agent may request; and
(E) evidence that all other actions necessary or, in the reasonable opinion of Administrative Agent, desirable to perfect and protect the Lien created by the Collateral Documents, and to enhance Administrative Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken;
(x) written evidence that the Existing Credit Agreement has been or concurrently is being terminated and all Liens securing such facility have been or concurrently are being released;
(xi) evidence of insurance coverage required under Section 6.06; and
(xii) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or the Requisite Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) The representations and warranties made by Borrower herein, or which are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, are true and shall be correct in all material respects on and as of the Closing Date, .
(Bd) that Each Borrower is Party shall be in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default shall have occurred and be continuing, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements which has a Material Adverse Effect;.
(vie) an opinion Other than litigation described on Schedule 5.05 hereto, the absence of counsel ------------- any action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or governmental authority that purports (i) to materially and adversely affect Borrower in form or its Subsidiaries, or (ii) to affect any transaction contemplated hereby or the ability of Borrower and substance its Subsidiaries under the Loan Documents to perform their respective obligations thereunder.
(f) Receipt and review, with results satisfactory to Administrative Agent and the Lenders;
its counsel, of information regarding litigation, tax, accounting, labor, insurance, pension liabilities (vii) written evidence that the Existing Credit Agreement actual or contingent), real estate leases, material contracts, debt agreements, property ownership, environmental matters, contingent liabilities and all commitments thereunder have been or concurrently herewith are being terminated; and
(viii) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or Requisite Lenders reasonably may requiremanagement of Borrower and its Subsidiaries.
(g) Receipt and review, with results satisfactory to Administrative Agent and Lenders, of information confirming that (i) Borrower and its Subsidiaries are taking all necessary and appropriate steps to ascertain the extent of, and to quantify and successfully address, business and financial risks facing Borrower and its subsidiaries as a result of what is commonly referred to as the "Year 2000 problem" (i.e., the inability of certain computer applications to recognize correctly and perform date-sensitive functions involving certain dates prior to and after December 31, 1999), including risks resulting from the failure of key vendors and customers of Borrower and its Subsidiaries to successfully address the Year 2000 problem, and (b) Any fees required to be paid Borrower's and its Subsidiaries' material computer applications and those of its key vendors and customers will, on or before a timely basis, adequately address the Closing Date shall have been paidYear 2000 problem in all material respects.
(ch) The absence of any material disruption of or a material adverse change in conditions in the financial, banking or capital markets which Administrative Agent and Arranger in their sole discretion, deem material in connection with the syndication of the Loan Documentation.
(i) Unless waived by Administrative Agent, Borrower shall have paid all Attorney Costs of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and Administrative Agent).
Appears in 1 contract
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of each Lender to make its initial Extension of Credit hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by Administrative Agent with respect to immaterial matters or items specified in subsections (v) or (vi) below with respect to which Borrower has given assurances satisfactory to Administrative Agent that they will be delivered promptly following the Closing Date), Administrative Agent's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of Borrower, each dated on, or in the case of third-party certificates, recently before the Closing Date and each in form and substance satisfactory to Administrative Agent, Lenders and their legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Administrative Agent, Lenders and Borrower;
(ii) Notes executed by Borrower in favor of each Lender, each in a principal amount equal to such Lender's Commitment;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as Administrative Agent and any Lender may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer thereof;
(iv) such evidence as Administrative Agent and any Lender may reasonably require to verify that Borrower is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in business, including certified copies of Borrower's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(v) a certificate signed by a Responsible Officer of Borrower certifying (A) that the representations and warranties made by Borrower herein, or which are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, are true and correct on and as of the Closing Date, (B) that Borrower is in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default shall have occurred and be continuing, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements which has a Material Adverse Effect;
(vi) an opinion of counsel to Borrower in form and substance satisfactory to Administrative Agent and the Lenders;
(vii) written evidence that the Existing Credit Agreement and all commitments thereunder have been or concurrently herewith are being terminated; and
(viii) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender Agent or Requisite Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Administrative Agent, Borrower shall have paid all Attorney Costs of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not -------- thereafter preclude final settling of accounts between Borrower and Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Quantum Corp /De/)
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of each Lender to make its the initial Extension of Credit hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by the Administrative Agent with respect to immaterial matters or items specified in subsections (v) or (vi) below with respect to which Borrower has given assurances satisfactory to Administrative Agent that they will be delivered promptly following the Closing Datematters), the Administrative Agent's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of BorrowerOfficer, each dated on, on or in the case of third-party certificates, recently before about the Closing Date and each in form and substance satisfactory to the Administrative Agent, Lenders Agent and their its legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Administrative Agent, Lenders and Borrower;
(ii) the Swing Line Note executed by Borrower in favor of Swing Line Lender and Committed Loan Notes executed by Borrower in favor of each LenderLender requesting a Committed Loan Note, each in a principal amount equal to such that Lender's Commitment;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower Party as Administrative Agent and any Lender may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer thereofthereof (provided, that the signatures of Responsible Officers from NHC Homes, Inc. will be facsimiles thereof with originals to be delivered as soon as possible after the Closing Date);
(iv) such evidence as Administrative Agent and any Lender may reasonably require to verify that each Borrower Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in business, including certified copies of Borrowereach Borrower Party's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(v) a certificate signed by a Responsible Officer of Borrower certifying (A) that the representations conditions specified in Sections 5.01(c) and warranties made by Borrower herein, or which are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, are true 5.01(d) have been satisfied ,and correct on and as of the Closing Date, (B) that Borrower is in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default shall have occurred and be continuing, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements which has a Material Adverse Effect;
(vi) an opinion of counsel to Borrower in form and substance satisfactory to Administrative Agent and the LendersAgent;
(vii) written assignments of indebtedness and security therefor (and/or with respect to the Collateral in Tennessee, purchase agreements) in favor of Administrative Agent (on behalf of Lenders) from existing lenders with Liens on the initial Borrowing Base Inventory which sell and/or assign their indebtedness and Liens to Lenders, and evidence that all other Liens on the Existing Credit Agreement and all commitments thereunder Borrowing Base Inventory (other than those in favor of Lenders under this Agreement) have been or will be concurrently herewith are being terminatedreleased (as to such acquired and assigned indebtedness, the indebtedness so acquired or assigned shall be renewed, extended, amended and restated by this Agreement and the Notes);
(viii) the Security Documents executed by Borrower or the applicable Borrower Entity, which documents shall be filed if required to do so to perfect the Liens therein granted with the appropriate Governmental Authority;
(ix) the Guaranties executed by the Guarantors (provided, that the signatures of Responsible Officers from NHC Homes, Inc. will be facsimiles thereof with originals to be delivered as soon as possible after the Closing Date);
(x) the Environmental Indemnity executed by Borrower;
(xi) a current Work in Progress Report and Development Parcel Cost Report and all documents, instruments and certificates required thereunder and under this Agreement to enable Administrative Agent and Lenders to establish the initial Borrowing Base Inventory and the initial Borrowing Base and as required by Section 3.05; and
(viiixii) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or the Requisite Lenders may reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) The representations and warranties made by Borrower herein, or which are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, shall be correct on and as of the Closing Date.
(d) Each Borrower Party shall be in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default shall have occurred and be continuing.
(e) Unless waived by Administrative Agent, Borrower shall have paid all Attorney Costs of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and Administrative Agent).
Appears in 1 contract
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of each Lender to make its initial Extension of Credit hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by Administrative Agent with respect to immaterial matters or items specified in subsections (v) or (vi) below with respect to which Borrower has given assurances satisfactory to Administrative Agent that they will be delivered promptly following the Closing Date)and Lenders, Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of Borrowerthe applicable Credit Party, each dated on, or in the case of third-third party certificates, recently before the Closing Date and each in form and substance satisfactory to Administrative Agent, Lenders and their legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Administrative Agent, Lenders and Borrower;
(ii) the Notes executed by Borrower in favor of each Lender, each in a principal amount equal to such Lender's ’s Commitment;
(iii) the Multi-Party Guaranty;
(iv) the General Security Agreement, together with such certificates, stock powers, registrations and other supporting documents as Administrative Agent shall reasonably require;
(v) the Intellectual Property Security Agreement together with such certificates, stock powers, registrations and other supporting documents as Administrative Agent shall reasonably require;
(vi) the UK Pledge Agreement together with such certificates, stock powers, registrations and other supporting documents as Administrative Agent shall reasonably require;
(vii) [Intentionally Reserved];
(viii) the original Fee Letter;
(ix) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as Administrative Agent and any Lender may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer thereof;
(ivx) such evidence as Administrative Agent and any Lender may reasonably require to verify that Borrower each Credit Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction such jurisdiction(s) as specified in which it is required to be qualified to engage in businessSection 5.1, including certified copies of Borrower's Organization Documents, such Credit Party’s certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(vxi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the representations and warranties made by Borrower herein, or which are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, herein are true and correct on and as of the Closing DateDate (except to the extent such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date), (B) that Borrower is in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default shall have occurred and be continuing, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements which has a Material Adverse Effect;
(vixii) an opinion opinions of counsel to Borrower in substantially the form of Exhibit H;
(xiii) with respect to the property owned or leased by Borrower and substance each Guarantor, Borrower shall have caused to be delivered to Administrative Agent (i) the results of Uniform Commercial Code lien searches for the states of California and Delaware and any other state where a Guarantor is organized or has its chief executive office, satisfactory to Administrative Agent and the Lenders;
, and (viiii) written evidence that the Existing Credit Agreement and Uniform Commercial Code termination statements reflecting termination of all commitments thereunder have been or concurrently herewith are being terminatedfinancing statements previously filed by any Person except as expressly permitted hereunder; and
(viiixiv) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or Requisite Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Administrative Agent, Borrower shall have paid all Attorney Costs of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and Administrative Agent).
(d) Administrative Agent and its counsel shall have reviewed any and all outstanding litigation involving Borrower or its Subsidiaries and shall be satisfied with the same, in its sole and absolute discretion.
(e) Administrative Agent shall have received:
(i) evidence, reasonably satisfactory to Administrative Agent, that the Borrower has completed, or concurrently with the initial credit extension hereunder will complete, the Related Transactions in accordance with the terms of the Merger Documents (without any material amendment thereto or waiver thereunder unless consented to by Administrative Agent, which consent shall not be unreasonably withheld). All material and necessary authorizations, consents, approvals, exceptions or other actions by or notices to or filings with any court or administrative or governmental body or other Person required in connection with the execution, delivery or performance of the Merger Documents or the consummation of the Related Transactions shall be final and in full force and effect and shall be in form and substance reasonably satisfactory to Administrative Agent. Administrative Agent shall have received a copy of the Merger Documents and all instruments, documents and agreements related thereto, certified in certificate of a Responsible Officer of Borrower, dated the Closing Date, as correct and complete;
(ii) evidence reasonably satisfactory to it that (1) the aggregate purchase price under the Related Transactions shall not exceed $70,000,000, it being understood that the purchase price may increase or decrease after the Closing Date in accordance with the Merger Documents but in no event shall the purchase price exceed $80,000,000, (2) the aggregate fees and expenses payable by the Borrower with respect to the Related Transactions will not exceed $3,500,000, and (3) there has been no Material Adverse Effect with respect to the Borrower since December 31, 2005 and to the best knowledge of Borrower with respect to MRC since December 31, 2005; and
(iii) pro forma/projected financial statements of the Borrower and pro forma calculations of the covenants set forth in Section 7.12, in each case giving effect to the Related Transactions and the funding of the Loans on the Closing Date.
Appears in 1 contract
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of each Lender to make its the initial Extension of Credit hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by Administrative Agent with respect to immaterial matters or items specified in subsections (v) or (vi) below with respect to which Borrower has given assurances satisfactory to Administrative Agent that they will be delivered promptly following the Closing Date), Administrative Agent's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of BorrowerOfficer, as applicable, each dated on, on or in the case of third-party certificates, recently before about the Closing Date and each in form and substance satisfactory to Administrative Agent, Lenders Agent and their its legal counsel:
(ia) executed counterparts of this AgreementAgreement and each other Loan Document, sufficient in number for distribution to Administrative Agent, Lenders and BorrowerBorrowers, (b) an Acknowledgment and Consent in the form attached to the Borrowers Pledge Agreement, executed and delivered by any issuer of the Pledge Collateral that is not a Borrower Party and (c) a Lender Addendum executed and delivered by each Lender and accepted by Borrowers;
(ii) Notes executed by Borrower Borrowers in favor of each LenderLender requesting a Note, each in a principal amount equal to such Lender's CommitmentLoan;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower Party as Administrative Agent and any Lender may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer thereof;
(iv) such evidence as Administrative Agent and any Lender may reasonably require to verify that each Borrower Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in business, including including, without limitation, certified copies of Borrowereach Borrower Party's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(v) a certificate signed by a Responsible Officer of Borrower Borrowers certifying that (A) the conditions specified in Sections 4.01(e) and 4.01(g) have been satisfied and (B) there has been no event or circumstances since the date of the Audited Financial Statements which has a Material Adverse Effect;
(vi) opinions of counsel to the Borrower Parties substantially in the form of Exhibit F hereto;
(vii) execution and delivery of the Intra-Company Loan Subordination Agreement;
(viii) execution and delivery of the Intercreditor Agreement;
(ix) audited consolidated financial statements of the REIT for fiscal years 1999 and 2000, and unaudited interim consolidated financial statements of the REIT for each fiscal quarter following December 31, 2000, as available, which shall be reasonably satisfactory to Lenders;
(x) written business plans for Borrowers' fiscal years 2002-2005 in such detail as reasonably required by Administrative Agent including, among other things, written analysis of the business and prospects of the Borrowers and their Subsidiaries for the period from the Closing Date through the Maturity Date, which shall be reasonably satisfactory to Lenders;
(xi) a certification and written analysis of the chief financial officer or treasurer of Borrowers which, to the Administrative Agent's satisfaction, evidences that Borrowers and their Subsidiaries are, and shall remain through and including the Maturity Date, Solvent after giving effect to the Loans, the Casden Acquisition, and the other transactions contemplated thereby;
(xii) evidence satisfactory to Administrative Agent that Borrowers shall have taken or caused to be taken all such actions, executed and delivered or caused to be executed and delivered all such agreements, documents and instruments, and made or caused to be made all such filings and recordings and deliveries that may be necessary or, in the opinion of Administrative Agent, desirable in order to create in favor of Administrative Agent, for the benefit of Lenders, a valid and (upon such filing and recording and delivery) perfected first priority security interest in the Pledged Collateral comprising the Casden Pledged Collateral and a perfected second priority security interest in the Pledged Collateral comprising the Non-Casden Pledged Collateral. Such actions shall include the following:
(A) delivery to Administrative Agent of accurate and complete schedules to all of the applicable Collateral Documents; and
(B) delivery to Administrative Agent of (a) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent) representing all capital stock constituting Casden Pledged Collateral pledged pursuant to the Borrowers Pledge Agreement and (b) all promissory notes or other instruments (duly endorsed, where appropriate, in a manner satisfactory to Administrative Agent) constituting Casden Pledged Collateral evidencing any Pledged Collateral (other than the Park La Brea and Westwood Village Properties Notes);
(xiii) a pro forma Compliance Certificate for the succeeding two years after the Closing Date, which shall be in form and substance satisfactory to Administrative Agent; and
(xiv) a pro forma consolidated balance sheet of the Borrowers as of September 30, 2001, adjusted to give effect to the closing of the Casden Acquisition and the financings contemplated thereby as if such transactions had occurred as of such date.
(b) Any fees required to be paid on or before the Closing Date shall have been paid, including all fees referred to in Section 2.06.
(c) Administrative Agent shall have received evidence satisfactory to it that the fees and related costs incurred as of the Closing Date in connection with the Casden Acquisition and all other transactions contemplated thereby have not, and are not reasonably expected to, exceed $17,000,000 in the aggregate.
(d) Administrative Agent shall have received evidence satisfactory to it that HUD has approved the transfer of Casden Assets contemplated by the Merger Agreement to occur on the Closing Date, to the extent HUD's approval is required.
(e) The representations and warranties made by Borrower Borrowers herein, or which are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, are true and shall be correct on and as of the Closing DateDate (other than any representations and warranties made as of a specified date, which shall only be required to be correct as of such specified date) in all material respects.
(f) The results of a recent lien search in each relevant jurisdiction indicating that there are no Liens on the Casden Pledged Collateral except for Liens securing Indebtedness listed on Schedules 7.01(d), (Bi), (k), or (m), or Indebtedness or Liens otherwise permitted under this Agreement.
(g) that Each Borrower is Party shall be in compliance with all the terms and provisions of the Loan Documents to which it is a partyparty and any other material document relating to any other material financial obligation except as disclosed To The Best Knowledge of Borrowers on Schedule 5.03B attached hereto and except for breaches of financings related to Casden Assets arising from the Casden Acquisition or the transactions contemplated by this Agreement and the Revolving Credit Agreement, and no Default or Event of Default shall have occurred and be continuing, and (C) that there has been no event or circumstance since the date of the Audited Financial Statements which has a Material Adverse Effect;
(vi) an opinion of counsel to Borrower in form and substance satisfactory to Administrative Agent and the Lenders;
(vii) written evidence that the Existing Credit Agreement and all commitments thereunder have been or concurrently herewith are being terminated; and
(viii) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or Requisite Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(ch) Unless waived by Administrative Agent, Borrower Borrowers shall have paid all Attorney Costs of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower Borrowers and Administrative Agent).
(i) Administrative Agent shall have received evidence reasonably satisfactory to it that all conditions to the closing and consummation of the Casden Acquisition shall have been irrevocably satisfied or irrevocably waived.
(j) Administrative Agent shall have received a fully executed (and duly delivered) copy of the Revolving Credit Agreement and all other Revolving Loan Documents.
(k) Borrowers shall have publicly distributed a press release naming the Lead Arranger as its financial advisor for the Casden Acquisition.
(l) Administrative Agent shall have received certified copies of all publicly filed documents reasonably requested by the Administrative Agent relating to the following litigation: (i) In Re Real Estate Associates Limited Partnership Litigation v. Casden et al. and (ii) Nausatauvicus et al.
Appears in 1 contract
Samples: Interim Credit Agreement (Apartment Investment & Management Co)
