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 Administrative Agent and Lenders, 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 the 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 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 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; (x) such evidence as Administrative Agent and any Lender may reasonably require to verify that each Credit Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in such jurisdiction(s) as specified in Section 5.1, including certified copies of such Credit Party’s certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like; (xi) a certificate signed by a Responsible Officer of Borrower (A) that the representations and warranties made by Borrower herein are true and correct on and as of the Closing Date (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; (xii) opinions of counsel to Borrower in substantially the form of Exhibit H; (xiii) with respect to the property owned or leased by Borrower and 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 Agent and the Lenders, and (ii) Uniform Commercial Code termination statements reflecting termination of all financing statements previously filed by any Person except as expressly permitted hereunder; and (xiv) 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 initial Extension of Credit hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by Administrative Agent and Lenders, 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 the applicable Credit PartyBorrower, 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 Commitment;
(iii) the Multi-Party GuarantyThe original Colorado Springs Deed of Trust;
(iv) the General Security The original Stock Pledge Agreement, together with such certificates, stock powers, registrations and other supporting documents as Administrative Agent shall reasonably require;
(v) the The original Intellectual Property Security Agreement together with such certificates, stock powers, registrations and other supporting documents as Administrative Agent shall reasonably requireAgreement;
(vi) the UK Pledge Agreement together with such certificates, stock powers, registrations and other supporting documents as Administrative Agent shall reasonably requireThe original General Security Agreement;
(vii) [Intentionally Reserved]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 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;
(x) such evidence as Administrative Agent and any Lender may reasonably require to verify that each Credit Party Borrower is duly organized or formed, validly existing, in good standing and qualified to engage in business in such jurisdiction(s) as specified in Section 5.1Delaware, California, Colorado and Texas, including certified copies of such Credit PartyBorrower’s Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(xi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the representations and warranties made by Borrower herein are true and correct on and as of the Closing Date (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;
(xii) opinions of counsel to Borrower in substantially the form of Exhibit Hand substance satisfactory to Administrative Agent;
(xiii) with respect to written evidence that the property owned Existing Credit Agreement and all commitments thereunder have been or leased by Borrower concurrently herewith are being terminated;
(xiv) a certificate in form and each Guarantor, Borrower shall have caused to be delivered substance satisfactory to Administrative Agent certifying that Borrower and its Subsidiaries on a consolidated basis held unrestricted cash (iand cash equivalents) of $100,000,000 or more as of the results last day of Uniform Commercial Code lien searches for the states month during which the initial Extension of California and Delaware and any other state where a Guarantor Credit is organized or has its chief executive office, satisfactory to Agent and the Lenders, and (ii) Uniform Commercial Code termination statements reflecting termination of all financing statements previously filed by any Person except as expressly permitted hereunder; andbe made.
(xivxv) 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).
(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
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 and Lenderswith 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 '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 applicable Credit PartyBorrower, 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;
(xiv) such evidence as Administrative Agent and any Lender may reasonably require to verify that each Credit Party Borrower is duly organized or formed, validly existing, in good standing and qualified to engage in business in such jurisdiction(s) as specified each jurisdiction in Section 5.1which it is required to be qualified to engage in business, including certified copies of such Credit Party’s Borrower's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(xiv) a certificate signed by a Responsible Officer of Borrower certifying (A) that the representations and warranties made by Borrower herein 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 (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)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;
(xiivi) opinions an opinion of counsel to Borrower in substantially the form of Exhibit H;
(xiii) with respect to the property owned or leased by Borrower and each Guarantor, Borrower shall have caused to be delivered substance satisfactory 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 Agent and the Lenders, ;
(vii) written evidence that the Existing Credit Agreement and (ii) Uniform Commercial Code termination statements reflecting termination of all financing statements previously filed by any Person except as expressly permitted hereundercommitments thereunder have been or concurrently herewith are being terminated; and
(xivviii) 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
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 Administrative Agent and Lenders, 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 the applicable Credit PartyBorrower, 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 original Notes executed by Borrower in favor of each Lender, each in a principal amount equal to such Lender’s Commitment;
(iii) original amendment to the Multi-Party GuarantyColorado Springs Deed of Trust;
(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;
(ixv) 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;
(xvi) such evidence as Administrative Agent and any Lender may reasonably require to verify that each Credit Party Borrower is duly organized or formed, validly existing, in good standing and qualified to engage in business in such jurisdiction(s) as specified in Section 5.1Delaware, California and Colorado, including certified copies of such Credit PartyBorrower’s Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(xivii) a certificate signed by a Responsible Officer of Borrower certifying (A) that the representations and warranties made by Borrower herein are true and correct on and as of the Closing Date (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;
(xiiviii) opinions of counsel to Borrower a certificate in substantially the form of Exhibit H;
(xiii) with respect to the property owned or leased by Borrower and each Guarantor, Borrower shall have caused to be delivered substance satisfactory to Administrative Agent certifying that Borrower and its Subsidiaries on a consolidated basis held unrestricted cash (iand cash equivalents) of $50,000,000 or more as of the results last day of Uniform Commercial Code lien searches for the states month during which the initial Extension of California and Delaware and any other state where a Guarantor Credit is organized or has its chief executive office, satisfactory to Agent and the Lenders, and (ii) Uniform Commercial Code termination statements reflecting termination of all financing statements previously filed by any Person except as expressly permitted hereunderbe made; and
(xivix) 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).
(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
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 and Lenderswith 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 '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 applicable Credit PartyBorrower, 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;
(xiv) such evidence as Administrative Agent and any Lender may reasonably require to verify that each Credit Party Borrower is duly organized or formed, validly existing, in good standing and qualified to engage in business in such jurisdiction(s) as specified each jurisdiction in Section 5.1which it is required to be qualified to engage in business, including certified copies of such Credit Party’s Borrower's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(xiv) a certificate signed by a Responsible Officer of Borrower certifying (A) that the representations and warranties made by Borrower herein 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 (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)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;
(xiivi) opinions an opinion of counsel to Borrower in substantially the form of Exhibit H;
(xiii) with respect to the property owned or leased by Borrower and each Guarantor, Borrower shall have caused to be delivered substance satisfactory 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 Agent and the Lenders, ;
(vii) written evidence that the Existing Credit Agreement and (ii) Uniform Commercial Code termination statements reflecting termination of all financing statements previously filed by any Person except as expressly permitted hereundercommitments thereunder have been or concurrently herewith are being terminated; and
(xivviii) 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).
(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
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 Administrative Agent and LendersLender, 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 applicable Credit PartyBorrower, 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 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) the Notes Note executed by Borrower in favor of each Lender, each Lender in a principal amount equal to such Lender’s the Commitment;
(iii) the Multi-Party Guarantyoriginal General Security Agreement;
(iv) the General Security Agreement, together with such certificates, stock powers, registrations and other supporting documents Stock Pledge Agreement in the form attached as Administrative Agent shall reasonably requireExhibit E hereto;
(v) the Intellectual Property Security Agreement together release of all liens and termination of all financing statements filed in connection with such certificatesXxxxx Fargo Foothill, stock powers, registrations and other supporting documents as Administrative Agent shall reasonably requireInc. loan to Borrower;
(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 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;
(xvii) such evidence as Administrative Agent and any Lender may reasonably require to verify that each Credit Party Borrower is duly organized or formed, validly existing, in good standing and qualified to engage in business in such jurisdiction(s) as specified in Section 5.1Delaware and California, including certified copies of such Credit PartyBorrower’s certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(xiviii) a certificate signed by a Responsible Officer of Borrower certifying (A) that the representations and warranties made by Borrower herein are true and correct on and as of the Closing Date (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;
(xiiix) opinions of counsel to Borrower and any Subsidiary in substantially the form of Exhibit Hand substance satisfactory to Lender;
(xiiix) with respect 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 last day of the month prior to the property owned or leased by Borrower and each Guarantor, Borrower shall have caused month during which the initial Extension of Credit is 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 Agent and the Lenders, and (ii) Uniform Commercial Code termination statements reflecting termination of all financing statements previously filed by any Person except as expressly permitted hereundermade; and
(xivxi) 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).
(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 initial Extension of Credit hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by Administrative Agent and Lenderswith respect to immaterial matters or items specified in subsection (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 '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 applicable Credit PartyBorrower, 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 Lenders and Administrative Agent, Lenders Agent and their legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Administrative Agent, Lenders and Borrower;
(ii) the Committed Loan Notes executed by Borrower in favor of each Lender, each in a principal amount equal to such Lender’s CommitmentLender requesting same;
(iii) the Multi-Party GuarantyCompetitive Loan Notes executed by Borrower in favor of each Lender requesting same;
(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 the Borrower as Administrative Agent or 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;
(xv) such evidence as Administrative Agent and any Lender Lenders may reasonably require to verify that each Credit Party Borrower is duly organized or formed, validly existing, in good standing and qualified to engage in business in such jurisdiction(s) as specified each jurisdiction in Section 5.1which it is required to be qualified to engage in business (except, in the case of qualification to engage in business in jurisdictions other than that of its organization and of its chief executive office, failure to so qualify would not have a Material Adverse Effect), including certified copies for the Borrower of such Credit Party’s its Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(xivi) 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, (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) the current Debt Ratings, if applicable;
(vii) an opinion of counsel to Borrower in form and substance satisfactory to Administrative Agent and Lenders; and
(viii) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or 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 herein, or which are true and contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, shall be correct in all material respects on and as of the Closing Date Date.
(except to the extent such representations and warranties specifically refer to an earlier date, in which case they d) Borrower 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;
(xii) opinions of counsel to Borrower in substantially the form of Exhibit H;
(xiii) with respect to the property owned or leased by Borrower and 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 Agent and the Lenders, and (ii) Uniform Commercial Code termination statements reflecting termination of all financing statements previously filed by any Person except as expressly permitted hereunder; and
(xiv) 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 the Administrative Agent and Lenderswith respect to immaterial matters), the 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 the applicable Credit PartyOfficer, 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 '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 each Borrower Party as Administrative Agent 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);
(xiv) such evidence as Administrative Agent and any Lender may reasonably require to verify that each Credit Borrower Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in such jurisdiction(s) as specified each jurisdiction in Section 5.1which it is required to be qualified to engage in business, including certified copies of such Credit each Borrower Party’s 's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(xiv) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 5.01(c) and 5.01(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;
(vi) an opinion of counsel to Borrower in form and substance satisfactory to Administrative Agent;
(vii) 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 Borrowing Base Inventory (other than those in favor of Lenders under this Agreement) have been or will be concurrently released (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
(xii) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or the Requisite Lenders may reasonably 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 herein, or which are true and 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 Date.
(except to the extent such representations and warranties specifically refer to an earlier date, in which case they d) Each Borrower Party 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;
(xii) opinions of counsel to Borrower in substantially the form of Exhibit H;
(xiii) with respect to the property owned or leased by Borrower and 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 Agent and the Lenders, and (ii) Uniform Commercial Code termination statements reflecting termination of all financing statements previously filed by any Person except as expressly permitted hereunder; and
(xiv) 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).
(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 and Lenderswith respect to immaterial matters or items specified in subsections (iv) or (v) 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 '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 applicable Credit signing Borrower 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 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 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 's Revolving Commitment and Term Commitment, respectively;
(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 each Borrower Party as Administrative Agent 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;
(xiv) such evidence the articles or certificate of incorporation or organization of Borrower and CPK Management Company as Administrative Agent in effect on the Closing Date, certified by the Secretary of State of California as of a recent date and any Lender may reasonably require to verify that each Credit Party is duly organized the bylaws of Borrower and CPK Management Company, Inc as in effect on the Closing Date, certified by the Secretary or formedAssistant Secretary of Borrower and CPK Management Company, validly existingInc, in respectively, as of the Closing Date; and
(v) a good standing certificate for Borrower and qualified to engage in business in such jurisdiction(s) CPK Management Company, Inc from the Secretary of State of California as specified in Section 5.1, including certified copies of such Credit Party’s certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;a recent date.
(xivi) 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 herein, or which are true and contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, shall be correct in all material respects on and as of the Closing Date Date.
(except to the extent such representations and warranties specifically refer to an earlier date, in which case they d) Each Borrower Party 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.
(e) 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 ability of Borrower and its Subsidiaries under the Loan Documents to perform their respective obligations thereunder.
(f) Receipt and review, with results satisfactory to Administrative Agent and its counsel, of information regarding litigation, tax, accounting, labor, insurance, pension liabilities (actual or contingent), real estate leases, material contracts, debt agreements, property ownership, environmental matters, contingent liabilities and management 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 (Cb) that there has been no event or circumstance since Borrower's and its Subsidiaries' material computer applications and those of its key vendors and customers will, on a timely basis, adequately address the date of the Audited Financial Statements which has a Material Adverse Effect;
(xii) opinions of counsel to Borrower Year 2000 problem in substantially the form of Exhibit H;
(xiii) with respect to the property owned or leased by Borrower and 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 Agent and the Lenders, and (ii) Uniform Commercial Code termination statements reflecting termination of all financing statements previously filed by any Person except as expressly permitted hereunder; and
(xiv) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or Requisite Lenders reasonably may requirematerial respects.
(bh) Any fees required to be paid on The absence of any material disruption of or before a material adverse change in conditions in the Closing Date shall have been paidfinancial, banking or capital markets which Administrative Agent and Arranger in their sole discretion, deem material in connection with the syndication of the Loan Documentation.
(ci) 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 initial Extension of Credit hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by Administrative Agent and Lenders, 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 the applicable Credit PartyBorrower, 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 Commitment;
(iii) the Multi-Party Guarantyoriginal General Security Agreement;
(iv) the General Security Agreement, together with such certificates, stock powers, registrations and other supporting documents Stock Pledge Agreement in the form attached as Administrative Agent shall reasonably requireExhibit E hereto;
(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;
(ixvi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as Administrative Agent 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;
(xvii) such evidence as Administrative Agent and any Lender may reasonably require to verify that each Credit Party Borrower is duly organized or formed, validly existing, in good standing and qualified to engage in business in such jurisdiction(s) as specified in Section 5.1Delaware and California, including certified copies of such Credit PartyBorrower’s certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(xiviii) a certificate signed by a Responsible Officer of Borrower certifying (A) that the representations and warranties made by Borrower herein are true and correct on and as of the Closing Date (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;
(xiiix) opinions of counsel to Borrower and any Subsidiary in substantially the form of Exhibit Hand substance satisfactory to Administrative Agent;
(xiiix) with respect to the property owned or leased by Borrower a certificate in form and each Guarantor, Borrower shall have caused to be delivered substance satisfactory to Administrative Agent (i) certifying that the results Consolidated Cash Balance of Uniform Commercial Code lien searches for Borrower and its Subsidiaries equaled $25,000,000 or more as of the states last day of California and Delaware and any other state where a Guarantor the month prior to the month during which the initial Extension of Credit is organized or has its chief executive office, satisfactory to Agent and the Lenders, and (ii) Uniform Commercial Code termination statements reflecting termination of all financing statements previously filed by any Person except as expressly permitted hereunderbe made; and
(xivxi) 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.
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