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 Agent with respect to immaterial matters or to items specified in subsection (iv) below with respect to which Borrower has given assurances satisfactory to Agent that they will be delivered promptly following the Closing Date, or by Requisite Lenders with respect to items specified in subsection (v) below), 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 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 Agent and its legal counsel: (i) executed counterparts of this Agreement, sufficient in number for distribution to Agent, Lenders and Borrower; (ii) Notes executed by Borrower in favor of each Lender requesting a Loan Note, each in a principal amount equal to that Lender's Commitment; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Party as 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; (iv) such evidence as Agent 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 each jurisdiction in which it is required to be qualified to engage in business, including certified copies of each Credit Party's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like; (v) the Base Financial Statements, accompanied by (A) a certificate signed by a Responsible Officer of Borrower certifying (1) that the conditions specified in Sections 4.01(c) and (d) have been satisfied and (2) that there has been no event or circumstance since the date of the Base Financial Statements which has a Material Adverse Effect and (B) a review letter by Arth▇▇ ▇▇▇e▇▇▇▇, ▇.L.P. concerning the method of preparation and apparent conformity to GAAP of such Base Financial Statements, which shall be in form and substance acceptable to Agent; (vi) an opinion of counsel to Borrower, Guarantors, and the other Credit Parties substantially in the form of Exhibit E hereto; (vii) a fully completed and duly executed (i) Compliance Certificate using a determination date as of the fiscal quarter ending June 30, 2000, and calculated on a pro forma basis using reasonable assumptions so as to show the effect of the Extensions of Credit to be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date as of the calendar month ending June 30, 2000; (viii) 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; (ix) the Collateral Documents, executed by the Borrower and the Guarantors, in appropriate form for recording, where necessary, together with: (A) a duly completed Perfection Certificate for Borrower and each Guarantor; (B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law; (C) written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens); (D) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify; (E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken; (F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages; (G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender; (H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; and (I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower; (x) Evidence that the Borrower shall have received not less than: (A) $11,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount of the Excluded Receivable, of not less than $25,000,000; (xi) written evidence that the Existing Credit Agreement has been or will be concurrently terminated and all Liens securing obligations under the Existing Credit Agreement have been or will be concurrently released; (xii) fully executed duplicate originals of each of the Intercompany Agreements; (xiii) fully executed subordination agreements from each of the Excluded Subsidiaries; and (xiv) such other assurances, certificates, documents, consents or opinions as 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, shall be correct on and as of the Closing Date. (d) 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 shall have occurred and be continuing. (e) Unless waived by Agent, Borrower shall have paid all Attorney Costs of 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 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 to items specified in subsection subsections (ivv) 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, or by Requisite Lenders with respect to items specified in subsection (v) below), 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 signing Credit PartyBorrower, each dated on, or in the case of third-party certificates, recently before the Closing Date and each in form and substance satisfactory to Agent Administrative Agent, Lenders and its 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 requesting a Loan NoteLender, each in a principal amount equal to that such Lender's Commitment;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Party 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 each Credit Party 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 each Credit PartyBorrower's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(v) the Base Financial Statements, accompanied by (A) a certificate signed by a Responsible Officer of Borrower certifying (1A) that the conditions specified in Sections 4.01(c) and (d) have been satisfied and (2) that there has been no event or circumstance since the date of the Base Financial Statements which has a Material Adverse Effect and (B) a review letter by Arth▇▇ ▇▇▇e▇▇▇▇, ▇.L.P. concerning the method of preparation and apparent conformity to GAAP of such Base Financial Statements, which shall be in form and substance acceptable to Agent;
(vi) an opinion of counsel to Borrower, Guarantors, and the other Credit Parties substantially in the form of Exhibit E hereto;
(vii) a fully completed and duly executed (i) Compliance Certificate using a determination date as of the fiscal quarter ending June 30, 2000, and calculated on a pro forma basis using reasonable assumptions so as to show the effect of the Extensions of Credit to be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date as of the calendar month ending June 30, 2000;
(viii) 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;
(ix) the Collateral Documents, executed by the Borrower and the Guarantors, in appropriate form for recording, where necessary, together with:
(A) a duly completed Perfection Certificate for Borrower and each Guarantor;
(B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(D) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify;
(E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence that the Borrower shall have received not less than: (A) $11,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount of the Excluded Receivable, of not less than $25,000,000;
(xi) written evidence that the Existing Credit Agreement has been or will be concurrently terminated and all Liens securing obligations under the Existing Credit Agreement have been or will be concurrently released;
(xii) fully executed duplicate originals of each of the Intercompany Agreements;
(xiii) fully executed subordination agreements from each of the Excluded Subsidiaries; and
(xiv) such other assurances, certificates, documents, consents or opinions as 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, shall be are true and correct on and as of the Closing Date.
, (dB) Each Credit Party shall be 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 or Requisite Lenders reasonably may require.
(eb) 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
Sources: 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 to items specified in subsection (iv) below with respect to which Borrower has given assurances satisfactory to Agent that they will be delivered promptly following the Closing Dateand Lenders, or by Requisite Lenders with respect to items specified in subsection (v) below), 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 signing Credit PartyBorrower, each dated on, or in the case of third-party certificates, recently before the Closing Date and each in form and substance satisfactory to Agent Administrative Agent, Lenders and its 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 requesting a Loan NoteLender, each in a principal amount equal to that 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 each Credit Party 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 each Credit Party 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 each Credit Party's Borrower’s Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(v) the Base Financial Statements, accompanied by (Axi) a certificate signed by a Responsible Officer of Borrower certifying (1A) that the conditions specified in Sections 4.01(c) and (d) have been satisfied and (2) that there has been no event or circumstance since the date of the Base Financial Statements which has a Material Adverse Effect and (B) a review letter by Arth▇▇ ▇▇▇e▇▇▇▇, ▇.L.P. concerning the method of preparation and apparent conformity to GAAP of such Base Financial Statements, which shall be in form and substance acceptable to Agent;
(vi) an opinion of counsel to Borrower, Guarantors, and the other Credit Parties substantially in the form of Exhibit E hereto;
(vii) a fully completed and duly executed (i) Compliance Certificate using a determination date as of the fiscal quarter ending June 30, 2000, and calculated on a pro forma basis using reasonable assumptions so as to show the effect of the Extensions of Credit to be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date as of the calendar month ending June 30, 2000;
(viii) 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;
(ix) the Collateral Documents, executed by the Borrower and the Guarantors, in appropriate form for recording, where necessary, together with:
(A) a duly completed Perfection Certificate for Borrower and each Guarantor;
(B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(D) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify;
(E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence that the Borrower shall have received not less than: (A) $11,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount of the Excluded Receivable, of not less than $25,000,000;
(xi) written evidence that the Existing Credit Agreement has been or will be concurrently terminated and all Liens securing obligations under the Existing Credit Agreement have been or will be concurrently released;
(xii) fully executed duplicate originals of each of the Intercompany Agreements;
(xiii) fully executed subordination agreements from each of the Excluded Subsidiaries; and
(xiv) such other assurances, certificates, documents, consents or opinions as 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 herein are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Closing Date.
Date (d) Each Credit Party 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 form and substance satisfactory to Administrative Agent;
(xiii) written evidence that the Existing Credit Agreement and all commitments thereunder have been or concurrently herewith are being terminated;
(xiv) 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.
(exv) 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.
(d) 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
Sources: 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 Agent with respect to immaterial matters or to items specified in subsection (iv) below with respect to which Borrower has given assurances satisfactory to Agent that they will be delivered promptly following the Closing DateLender, or by Requisite Lenders with respect to items specified in subsection (v) below), 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 Credit PartyBorrower, each dated on, or in the case of third-party certificates, recently before the Closing Date and each in form and substance satisfactory to Agent Lender and its legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Agent, Lenders Lender and Borrower;
(ii) Notes executed by Borrower in favor of each Lender requesting a Loan Note, each in a principal amount equal to that Lender's Commitment;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Party Borrower as 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;
(iviii) such evidence as Agent 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 each jurisdiction in which it is required to be qualified to engage in business, including certified copies of each Credit PartyBorrower's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance status certificates, and the like;
(v) the Base Financial Statements, accompanied by (Aiv) a certificate signed by a Responsible Officer of Borrower certifying (1A) that the conditions specified in Sections 4.01(c) and (d) have been satisfied satisfied, and (2B) that there has been no event or circumstance since the date of the Base Financial Statements June 30, 2001 which has a Material Adverse Effect and (B) a review letter by Arth▇▇ ▇▇▇e▇▇▇▇, ▇.L.P. concerning the method of preparation and apparent conformity to GAAP of such Base Financial Statements, which shall be in form and substance acceptable to AgentEffect;
(viv) an opinion of counsel to Borrower, Guarantors, and the other Credit Parties Borrower substantially in the form of Exhibit E hereto;
(vii) a fully completed and duly executed (i) Compliance Certificate using a determination date as of the fiscal quarter ending June 30, 2000, and calculated on a pro forma basis using reasonable assumptions so as to show the effect of the Extensions of Credit to be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date as of the calendar month ending June 30, 2000;
(viii) 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;
(ix) the Collateral Documents, executed by the Borrower and the Guarantors, in appropriate form for recording, where necessary, together with:
(A) a duly completed Perfection Certificate for Borrower and each Guarantor;
(B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(D) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify;
(E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence that the Borrower shall have received not less than: (A) $11,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount of the Excluded Receivable, of not less than $25,000,000;
(xi) written evidence that the Existing Credit Agreement has been or will be concurrently terminated and all Liens securing obligations under the Existing Credit Agreement have been or will be concurrently released;
(xii) fully executed duplicate originals of each of the Intercompany Agreements;
(xiii) fully executed subordination agreements from each of the Excluded Subsidiaries; and
(xivvi) such other assurances, certificates, documents, consents or opinions as Agent, Letter of Credit Issuer or the Requisite Lenders 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, shall be correct on and as of the Closing Date.
(d) Each Credit Party Borrower 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 Agent, Borrower shall have paid all Attorney Costs of 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 AgentLender).
Appears in 1 contract
Sources: Credit Agreement (Broadcom Corp)
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 Agent with respect to immaterial matters or to items specified in subsection (iv) below with respect to which Borrower has given assurances satisfactory to Agent that they will be delivered promptly following the Closing DateLender, or by Requisite Lenders with respect to items specified in subsection (v) below), 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 Credit 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 Agent Lender and its legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Agent, Lenders Lender and Borrower;
(ii) Notes if requested by Lender, a Note executed by Borrower in favor of each Lender requesting a Loan NoteLender, each in a principal amount equal to that Lender's the Commitment;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Borrower Party as 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;
(iv) such evidence the articles or certificate of incorporation or organization of Borrower and CPK Management Company as Agent may reasonably require to verify that each Credit Party 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 each Credit Party'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; provided, however, that such articles and bylaws need not be delivered -------- ------- hereunder to the extent not different from those previously delivered to Lender in connection with the Existing Credit Facility,
(v) a good standing certificate for Borrower and CPK Management Company, Inc from the Base Financial Statements, accompanied by Secretary of State of California as of a recent date;
(Avi) a certificate signed by a Responsible Officer of Borrower certifying (1) that the conditions specified in Sections 4.01(c) and (d4.01(d) --------------- ------ have been satisfied and (2) that there has been no event or circumstance since the date of the Base Financial Statements which has a Material Adverse Effect and (B) a review letter by Arth▇▇ ▇▇▇e▇▇▇▇, ▇.L.P. concerning the method of preparation and apparent conformity to GAAP of such Base Financial Statements, which shall be in form and substance acceptable to Agentsatisfied;
(vivii) an opinion of counsel to Borrower, Guarantors, Borrower in form and the other Credit Parties substantially in the form of Exhibit E hereto;
(vii) a fully completed and duly executed (i) Compliance Certificate using a determination date as of the fiscal quarter ending June 30, 2000, and calculated on a pro forma basis using reasonable assumptions so as substance satisfactory to show the effect of the Extensions of Credit to be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date as of the calendar month ending June 30, 2000Lender;
(viii) the Guaranty, Master Subsidiary Guaranty executed by each Subsidiary of Borrower, if any, required to be a party thereto on the Closing Date pursuant to Section 6.13Domestic Subsidiary;
(ix) the Collateral Documents, executed by the Borrower and the Guarantors, in appropriate form for recording, where necessary, together with:
(A) a duly completed Perfection Certificate for Borrower and each Guarantor;
(B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(D) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify;
(E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence that the Borrower shall have received not less than: (A) $11,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount of the Excluded Receivable, of not less than $25,000,000;
(xi) written evidence that the Existing Credit Agreement has been or Facility and all loan documents related thereto are being terminated as of the Closing Date, all collateral will be concurrently terminated released thereunder and all Liens securing obligations accrued and outstanding fees, interest and other amounts owing under the Existing Credit Agreement have been or will be concurrently released;
(xii) fully executed duplicate originals of each of the Intercompany Agreements;
(xiii) fully executed subordination agreements from each of the Excluded SubsidiariesFacility are being paid in full; and
(xivx) such other assurances, certificates, documents, consents or opinions as Agent, Letter of Credit Issuer or the Requisite Lenders 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, shall be correct in all material respects on and as of the Closing Date.
(d) Each Credit 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) 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) Unless waived by AgentLender, Borrower shall have paid all Attorney Costs of 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 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 to items specified in subsection (iv) below with respect to which Borrower has given assurances satisfactory to Agent that they will be delivered promptly following the Closing Dateand Lenders, or by Requisite Lenders with respect to items specified in subsection (v) below), 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 signing Credit PartyBorrower, 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 Agent Administrative Agent, Lenders and its 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 Lender requesting a Loan Notesuch Lender, each in a principal amount equal to that 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 each Credit Party 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 each Credit Party 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 each Credit Party's Borrower’s Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(v) the Base Financial Statements, accompanied by (Avii) a certificate signed by a Responsible Officer of Borrower certifying (1A) that the conditions specified in Sections 4.01(c) and (d) have been satisfied and (2) that there has been no event or circumstance since the date of the Base Financial Statements which has a Material Adverse Effect and (B) a review letter by Arth▇▇ ▇▇▇e▇▇▇▇, ▇.L.P. concerning the method of preparation and apparent conformity to GAAP of such Base Financial Statements, which shall be in form and substance acceptable to Agent;
(vi) an opinion of counsel to Borrower, Guarantors, and the other Credit Parties substantially in the form of Exhibit E hereto;
(vii) a fully completed and duly executed (i) Compliance Certificate using a determination date as of the fiscal quarter ending June 30, 2000, and calculated on a pro forma basis using reasonable assumptions so as to show the effect of the Extensions of Credit to be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date as of the calendar month ending June 30, 2000;
(viii) 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;
(ix) the Collateral Documents, executed by the Borrower and the Guarantors, in appropriate form for recording, where necessary, together with:
(A) a duly completed Perfection Certificate for Borrower and each Guarantor;
(B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(D) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify;
(E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence that the Borrower shall have received not less than: (A) $11,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount of the Excluded Receivable, of not less than $25,000,000;
(xi) written evidence that the Existing Credit Agreement has been or will be concurrently terminated and all Liens securing obligations under the Existing Credit Agreement have been or will be concurrently released;
(xii) fully executed duplicate originals of each of the Intercompany Agreements;
(xiii) fully executed subordination agreements from each of the Excluded Subsidiaries; and
(xiv) such other assurances, certificates, documents, consents or opinions as 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 herein are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Closing Date.
Date (d) Each Credit Party 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 ADIC Material Adverse Change since the date of the Audited Financial Statements;
(viii) 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 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
(ix) such other assurances, certificates, documents, consents or opinions as Administrative Agent or Requisite Lenders reasonably may require.
(eb) 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.
(d) 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 to items specified in subsection (ivvi) or (vii) below with respect to which Borrower has given assurances satisfactory to Administrative Agent that they will be delivered promptly following the Closing Date, or by Requisite Lenders with respect to items specified in subsection (v) below), 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 signing Credit 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 Agent Administrative Agent, Lenders and its their respective legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Administrative Agent, Lenders and Borrower;
(ii) executed counterparts of the Facility Guaranty and Pledge Agreement;
(iii) Committed Loan Notes executed by Borrower in favor of each Lender requesting a Loan Notesame, each in a principal amount equal to that such Lender's Commitment;
(iiiiv) Competitive Loan Notes executed by Borrower in favor of each Lender requesting same, each in the principal amount of the Competitive Loan Sublimit;
(v) a Swing Line Note executed by Borrower in favor of Swing Line Lender requesting same in the principal amount of the Swing Line Sublimit;
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Borrower Party 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;
(ivvii) such evidence as Administrative Agent or 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 each jurisdiction in which it is required to be qualified to engage in business, including certified copies of each Credit Borrower Party's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(v) the Base Financial Statements, accompanied by (Aviii) a certificate signed by a Responsible Officer of Borrower certifying (1A) that the conditions specified in Sections 4.01(cSECTIONS 5.01(c) and (d) have been satisfied and (2B) that there has been no event or circumstance since the date of the Base Audited Financial Statements which has a Material Adverse Effect Effect; and (BC) a review letter by Arth▇▇ ▇▇▇e▇▇▇▇, ▇.L.P. concerning the method of preparation and apparent conformity to GAAP of such Base Financial Statements, which shall be in form and substance acceptable to Agentcurrent Debt Ratings;
(viix) a duly completed Compliance Certificate signed by a Responsible Officer of Borrower as of the fiscal year end preceding the Closing Date;
(x) a schedule as of the most recent fiscal quarter end preceding the Closing Date in the form and content set forth in SECTION 7.02(B)(II);
(xi) an opinion of counsel to Borrower, Guarantors, and the other Credit Parties each Borrower Party substantially in the form of Exhibit E heretoEXHIBIT H hereto and opinions of counsel in each foreign jurisdiction governing a Pledge Agreement in form and substance satisfactory to Administrative Agent and Lenders;
(vii) a fully completed and duly executed (i) Compliance Certificate using a determination date as of the fiscal quarter ending June 30, 2000, and calculated on a pro forma basis using reasonable assumptions so as to show the effect of the Extensions of Credit to be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date as of the calendar month ending June 30, 2000;
(viii) 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;
(ix) the Collateral Documents, executed by the Borrower and the Guarantors, in appropriate form for recording, where necessary, together with:
(A) a duly completed Perfection Certificate for Borrower and each Guarantor;
(B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(D) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify;
(E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence that the Borrower shall have received not less than: (A) $11,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount of the Excluded Receivable, of not less than $25,000,000;
(xixii) written evidence that all commitments under the Existing Credit Agreement has have been or will be concurrently terminated herewith are being terminated, all outstanding amounts thereunder have been paid in full, and all Liens securing obligations under the Existing Credit Agreement Facility have been or will be concurrently herewith are being released;
(xii) fully executed duplicate originals of each of the Intercompany Agreements;
(xiii) fully executed subordination agreements from each written agreement of the Excluded SubsidiariesBorrower terminating all rights under the Existing Credit Agreement; and
(xiv) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Letter of Credit Issuer 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 each Borrower hereinParty herein or in any other Loan Document, 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 Credit 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 Agent, Borrower shall have paid all Attorney Costs and other out-of-pocket expenses 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
Sources: Credit Agreement (Tech Data 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 to items specified in subsection subsections (ivv) 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, or by Requisite Lenders with respect to items specified in subsection (v) below), 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 signing Credit PartyBorrower, each dated on, or in the case of third-party certificates, recently before the Closing Date and each in form and substance satisfactory to Agent Administrative Agent, Lenders and its 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 requesting a Loan NoteLender, each in a principal amount equal to that such Lender's Commitment;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Party 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 each Credit Party 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 each Credit PartyBorrower's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(v) the Base Financial Statements, accompanied by (A) a certificate signed by a Responsible Officer of Borrower certifying (1A) that the conditions specified in Sections 4.01(c) and (d) have been satisfied and (2) that there has been no event or circumstance since the date of the Base Financial Statements which has a Material Adverse Effect and (B) a review letter by Arth▇▇ ▇▇▇e▇▇▇▇, ▇.L.P. concerning the method of preparation and apparent conformity to GAAP of such Base Financial Statements, which shall be in form and substance acceptable to Agent;
(vi) an opinion of counsel to Borrower, Guarantors, and the other Credit Parties substantially in the form of Exhibit E hereto;
(vii) a fully completed and duly executed (i) Compliance Certificate using a determination date as of the fiscal quarter ending June 30, 2000, and calculated on a pro forma basis using reasonable assumptions so as to show the effect of the Extensions of Credit to be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date as of the calendar month ending June 30, 2000;
(viii) 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;
(ix) the Collateral Documents, executed by the Borrower and the Guarantors, in appropriate form for recording, where necessary, together with:
(A) a duly completed Perfection Certificate for Borrower and each Guarantor;
(B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(D) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify;
(E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence that the Borrower shall have received not less than: (A) $11,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount of the Excluded Receivable, of not less than $25,000,000;
(xi) written evidence that the Existing Credit Agreement has been or will be concurrently terminated and all Liens securing obligations under the Existing Credit Agreement have been or will be concurrently released;
(xii) fully executed duplicate originals of each of the Intercompany Agreements;
(xiii) fully executed subordination agreements from each of the Excluded Subsidiaries; and
(xiv) such other assurances, certificates, documents, consents or opinions as 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, shall be are true and correct on and as of the Closing Date.
, (dB) Each Credit Party shall be 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.
(eb) 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
Sources: Credit Agreement (Quantum Corp /De/)
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension of Credit hereunder is are subject to satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by Agent with respect to immaterial matters or to items specified in subsection (iv) below with respect to which Borrower has given assurances satisfactory to Agent that they will be delivered promptly following the Closing Date, or by Requisite Lenders with respect to items specified in subsection (v) below), The Administrative Agent's receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Credit Loan Party, each dated on, or in as of the case date of third-party certificates, recently before the Closing Date such initial Credit Extension and each in form and substance satisfactory to Agent and its legal counselthe Administrative Agent:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Agent, Lenders such documents and Borrower;
(ii) Notes executed by Borrower in favor of each Lender requesting a Loan Note, each in a principal amount equal to that Lender's Commitment;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Party certifications as 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;
(iv) such evidence as Administrative Agent may reasonably require to verify evidence that each Credit Loan Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect;
(ii) a favorable opinion of Winston & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G and such other matters concerning the Loan Parties, the Transactions and the Transaction Documents as the Required Lenders may reasonably request;
(iii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is required to be qualified to engage in business, including certified copies of each Credit Party's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificatesa party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(iv) certificates signed by the likechief financial officer of the Borrower as to the financial condition and solvency of the Borrower and the Borrower and its Subsidiaries, taken as a whole, respectively, after giving effect to the Transactions and the incurrence of Indebtedness and other Credit Extensions related thereto;
(v) the Base Financial Statements, accompanied by evidence of (A) the termination of any guaranty by the Borrower or any of its Subsidiaries of ▇▇▇▇'▇ senior credit facility and (B) cessation of the sale of receivables into ▇▇▇▇'▇ receivables-backed facility and the termination of any obligations of the Borrower or any of its Subsidiaries thereunder (other than de minimis non-repurchase obligations);
(vi) a certificate signed by a Responsible Officer of the Borrower certifying (1A) that the conditions specified in Sections 4.01(c4.02(c) and 4.03(a) and (db) have been satisfied and satisfied, (2B) that there has been no event or circumstance since the date of the Base Audited Financial Statements which that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect Effect; (C) a calculation of the Consolidated Leverage Ratio on a pro forma basis as of March 31, 2005, and (BD) a review letter by Arth▇▇ ▇▇▇e▇▇▇▇, ▇.L.P. concerning attaching true and correct copies of the method Spin-Off Transaction Documents (all of preparation and apparent conformity to GAAP of such Base Financial Statements, which shall be in form and substance acceptable reasonably satisfactory to the Administrative Agent;
(vi) an opinion of counsel to Borrower, Guarantors, and the other Credit Parties substantially in the form of Exhibit E hereto;); and
(vii) a fully completed and duly executed (i) Compliance Certificate using a determination date as of the fiscal quarter ending June 30, 2000, and calculated on a pro forma basis using reasonable assumptions so as to show the effect of the Extensions of an initial Request for Credit to be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date as of the calendar month ending June 30, 2000;
(viii) 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;
(ix) the Collateral Documents, executed by the Borrower and the Guarantors, in appropriate form for recording, where necessary, together with:
(A) a duly completed Perfection Certificate for Borrower and each Guarantor;
(B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(D) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify;
(E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence that the Borrower shall have received not less than: (A) $11,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount of the Excluded Receivable, of not less than $25,000,000;
(xi) written evidence that the Existing Credit Agreement has been or will be concurrently terminated and all Liens securing obligations under the Existing Credit Agreement have been or will be concurrently released;
(xii) fully executed duplicate originals of each of the Intercompany Agreements;
(xiii) fully executed subordination agreements from each of the Excluded Subsidiaries; and
(xiv) such other assurances, certificates, documents, consents or opinions as Agent, Letter of Credit Issuer or the Requisite Lenders reasonably may requireExtension.
(b) In the good faith judgment of the Administrative Agent:
(i) there shall not have occurred or become known to the Administrative Agent or the Lenders any event, condition, change, development, information, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries or the Business delivered to the Administrative Agent prior to such date that has had or would reasonably be expected to result in a Material Adverse Effect or materially adversely affect any aspect of the Transactions; and
(ii) there shall not exist (A) any order, decree, judgment, ruling or injunction which would materially adversely affect any aspect of the Spin-Off Transaction, or any portion thereof, or the transactions hereunder in the manner contemplated hereunder, and (B) any pending or, to the knowledge of the Borrower or any Guarantor or to the Administrative Agent, threatened action, suit, investigation or other arbitral, administrative or judicial proceeding, which, if adversely determined, would reasonably be expected to result in a Material Adverse Effect or materially adversely affect any aspect of the Transactions.
(c) The Spin-Off Transaction shall have been consummated on or before July 15, 2005, consistent with the description thereof provided to the Lenders, in accordance with the terms of the Spin-Off Transaction Documents, which Spin-Off Transaction Documents shall not have been altered, amended or otherwise changed or supplemented or any condition therein waived in any manner which would materially adversely affect the Lenders without the prior written consent of the Lenders, and in compliance with all applicable Laws or approvals, consents and waivers from any Governmental Authority or otherwise.
(d) Any all fees required to be paid payable on or before the Closing Date shall have been paid.
(c) The representations and warranties made by Borrower herein, paid 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 simultaneously paid with the proceeds of the Closing Date.
(d) Each such initial 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 shall have occurred and be continuingExtension.
(e) Unless waived by the Administrative Agent, the Borrower shall have paid paid, or be simultaneously paying with the proceeds of such initial Credit Extension, all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the 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 the Administrative Agent with respect to immaterial matters or to items specified in subsection (iv) below with respect to which Borrower has given assurances satisfactory to Agent that they will be delivered promptly following the Closing Date, or by Requisite Lenders with respect to items specified in subsection (v) belowmatters), 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 the signing 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 and 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 Lender requesting a Committed Loan Note, each in a principal amount equal to that Lender's Commitment;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit 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);
(iv) such evidence as Administrative Agent 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 each jurisdiction in which it is required to be qualified to engage in business, including certified copies of each Credit Borrower Party's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(v) the Base Financial Statements, accompanied by (A) a certificate signed by a Responsible Officer of Borrower certifying (1A) that the conditions specified in Sections 4.01(c5.01(c) and (d5.01(d) have been satisfied ,and (2B) that there has been no event or circumstance since the date of the Base Audited Financial Statements which has a Material Adverse Effect and (B) a review letter by Arth▇▇ ▇▇▇e▇▇▇▇, ▇.L.P. concerning the method of preparation and apparent conformity to GAAP of such Base Financial Statements, which shall be in form and substance acceptable to AgentEffect;
(vi) an opinion of counsel to Borrower, Guarantors, Borrower in form and the other Credit Parties substantially in the form of Exhibit E heretosubstance satisfactory to Administrative Agent;
(vii) a fully completed assignments of indebtedness and duly executed security therefor (iand/or with respect to the Collateral in Tennessee, purchase agreements) Compliance Certificate using a determination date as in favor of Administrative Agent (on behalf of Lenders) from existing lenders with Liens on the fiscal quarter ending June 30, 2000initial Borrowing Base Inventory which sell and/or assign their indebtedness and Liens to Lenders, and calculated evidence that all other Liens on a pro forma basis using reasonable assumptions so the Borrowing Base Inventory (other than those in favor of Lenders under this Agreement) have been or will be concurrently released (as to show such acquired and assigned indebtedness, the effect of indebtedness so acquired or assigned shall be renewed, extended, amended and restated by this Agreement and the Extensions of Credit to be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date as of the calendar month ending June 30, 2000Notes);
(viii) the Guaranty, Security Documents executed by each Subsidiary of BorrowerBorrower or the applicable Borrower Entity, which documents shall be filed if any, required to be a party thereto on do so to perfect the Closing Date pursuant to Section 6.13Liens therein granted with the appropriate Governmental Authority;
(ix) the Collateral Documents, Guaranties executed by the Borrower and the GuarantorsGuarantors (provided, in appropriate form for recording, where necessary, together with:
(A) a duly completed Perfection Certificate for Borrower and each Guarantor;
(B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject signatures of Responsible Officers from NHC Homes, Inc. will be facsimiles thereof with originals to no other Liens in favor of any Persons (other than Permitted Liensbe delivered as soon as possible after the Closing Date);
(D) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify;
(E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence that the Borrower shall have received not less than: (A) $11,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance Environmental Indemnity executed by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount of the Excluded Receivable, of not less than $25,000,000Borrower;
(xi) written evidence that the Existing Credit Agreement has been or will be concurrently terminated a current Work in Progress Report and Development Parcel Cost Report and all Liens securing obligations documents, instruments and certificates required thereunder and under this Agreement to enable Administrative Agent and Lenders to establish the Existing Credit Agreement have been or will be concurrently released;
(xii) fully executed duplicate originals of each of initial Borrowing Base Inventory and the Intercompany Agreements;
(xiii) fully executed subordination agreements from each of the Excluded Subsidiariesinitial Borrowing Base and as required by Section 3.05; and
(xivxii) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Letter of Credit Issuer 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 Credit 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 to items specified in subsection (iv) below with respect to which Borrower has given assurances satisfactory to Agent that they will be delivered promptly following the Closing Dateand Lenders, or by Requisite Lenders with respect to items specified in subsection (v) below), 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 signing 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 Agent Administrative Agent, Lenders and its 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 requesting a Loan NoteLender, each in a principal amount equal to that 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 each Credit Party 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;
(ivx) 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 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 each such Credit Party's Organization Documents, ’s certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(v) the Base Financial Statements, accompanied by (Axi) a certificate signed by a Responsible Officer of Borrower certifying (1A) that the conditions specified 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 Sections 4.01(cwhich 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 (d) have been satisfied and (2C) that there has been no event or circumstance since the date of the Base Audited Financial Statements which has a Material Adverse Effect and (B) a review letter by Arth▇▇ ▇▇▇e▇▇▇▇, ▇.L.P. concerning the method of preparation and apparent conformity to GAAP of such Base Financial Statements, which shall be in form and substance acceptable to Agent;
(vi) an opinion of counsel to Borrower, Guarantors, and the other Credit Parties substantially in the form of Exhibit E hereto;
(vii) a fully completed and duly executed (i) Compliance Certificate using a determination date as of the fiscal quarter ending June 30, 2000, and calculated on a pro forma basis using reasonable assumptions so as to show the effect of the Extensions of Credit to be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date as of the calendar month ending June 30, 2000;
(viii) 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;
(ix) the Collateral Documents, executed by the Borrower and the Guarantors, in appropriate form for recording, where necessary, together with:
(A) a duly completed Perfection Certificate for Borrower and each Guarantor;
(B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(D) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify;
(E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence that the Borrower shall have received not less than: (A) $11,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount of the Excluded Receivable, of not less than $25,000,000;
(xi) written evidence that the Existing Credit Agreement has been or will be concurrently terminated and all Liens securing obligations under the Existing Credit Agreement have been or will be concurrently releasedEffect;
(xii) fully executed duplicate originals opinions of each counsel to Borrower in substantially the form of the Intercompany AgreementsExhibit H;
(xiii) fully executed subordination agreements from 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 Excluded Subsidiariesstates 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, Letter of Credit Issuer 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, shall be correct on and as of the Closing Date.
(d) 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 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).
(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 with respect to immaterial matters or to items specified in subsection (iv) below with respect to which Borrower has given assurances satisfactory to Agent that they will be delivered promptly following the Closing Dateand Lenders, or by Requisite Lenders with respect to items specified in subsection (v) below), 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 signing Credit PartyBorrower, each dated on, or in the case of third-party certificates, recently before the Closing Date and each in form and substance satisfactory to Agent Administrative Agent, Lenders and its 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 requesting a Loan NoteLender, each in a principal amount equal to that 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 each Credit Party 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;
(ivvii) 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 each jurisdiction in which it is required to be qualified to engage in businessDelaware and California, including certified copies of each Credit Party's Organization Documents, Borrower’s certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(v) the Base Financial Statements, accompanied by (Aviii) a certificate signed by a Responsible Officer of Borrower certifying (1A) that the conditions specified 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 Sections 4.01(cwhich 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 (d) have been satisfied and (2C) that there has been no event or circumstance since the date of the Base Audited Financial Statements which has a Material Adverse Effect and (B) a review letter by Arth▇▇ ▇▇▇e▇▇▇▇, ▇.L.P. concerning the method of preparation and apparent conformity to GAAP of such Base Financial Statements, which shall be in form and substance acceptable to Agent;
(vi) an opinion of counsel to Borrower, Guarantors, and the other Credit Parties substantially in the form of Exhibit E hereto;
(vii) a fully completed and duly executed (i) Compliance Certificate using a determination date as of the fiscal quarter ending June 30, 2000, and calculated on a pro forma basis using reasonable assumptions so as to show the effect of the Extensions of Credit to be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date as of the calendar month ending June 30, 2000;
(viii) the Guaranty, executed by each Subsidiary of Borrower, if any, required to be a party thereto on the Closing Date pursuant to Section 6.13Effect;
(ix) the Collateral Documents, executed by the opinions of counsel to Borrower and the Guarantors, any Subsidiary in appropriate form for recording, where necessary, together with:
(A) a duly completed Perfection Certificate for Borrower and each Guarantor;
(B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence substance satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(D) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify;
(E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Administrative Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence a certificate in form and substance satisfactory to Administrative Agent certifying that the Consolidated Cash Balance of Borrower shall have received not less than: (A) and its Subsidiaries equaled $11,000,000 in cash 25,000,000 or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount more as of the Excluded Receivable, of not less than $25,000,000;
(xi) written evidence that the Existing Credit Agreement has been or will be concurrently terminated and all Liens securing obligations under the Existing Credit Agreement have been or will be concurrently released;
(xii) fully executed duplicate originals of each last day of the Intercompany Agreements;
(xiii) fully executed subordination agreements from each month prior to the month during which the initial Extension of the Excluded SubsidiariesCredit is to be made; and
(xivxi) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Letter of Credit Issuer 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, shall be correct on and as of the Closing Date.
(d) 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 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 to items specified in subsection (iv) below with respect to which Borrower has given assurances satisfactory to Agent that they will be delivered promptly following the Closing Dateand Lenders, or by Requisite Lenders with respect to items specified in subsection (v) below), 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 signing 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 Agent Administrative Agent, Lenders and its 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 requesting a Loan NoteLender, each in a principal amount equal to that 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 each Credit Party 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;
(ivx) 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 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 each Credit Party's Organization Documents, Borrower’s certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(v) the Base Financial Statements, accompanied by (Axi) a certificate signed by a Responsible Officer of Borrower certifying each Credit Party (1A) that the conditions specified 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 Sections 4.01(cwhich 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 (d) have been satisfied and (2C) that there has been no event or circumstance since the date of the Base Audited Financial Statements which has a Material Adverse Effect and (B) a review letter by Arth▇▇ ▇▇▇e▇▇▇▇, ▇.L.P. concerning the method of preparation and apparent conformity to GAAP of such Base Financial Statements, which shall be in form and substance acceptable to Agent;
(vi) an opinion of counsel to Borrower, Guarantors, and the other Credit Parties substantially in the form of Exhibit E hereto;
(vii) a fully completed and duly executed (i) Compliance Certificate using a determination date as of the fiscal quarter ending June 30, 2000, and calculated on a pro forma basis using reasonable assumptions so as to show the effect of the Extensions of Credit to be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date as of the calendar month ending June 30, 2000;
(viii) 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;
(ix) the Collateral Documents, executed by the Borrower and the Guarantors, in appropriate form for recording, where necessary, together with:
(A) a duly completed Perfection Certificate for Borrower and each Guarantor;
(B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(D) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify;
(E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence that the Borrower shall have received not less than: (A) $11,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount of the Excluded Receivable, of not less than $25,000,000;
(xi) written evidence that the Existing Credit Agreement has been or will be concurrently terminated and all Liens securing obligations under the Existing Credit Agreement have been or will be concurrently releasedEffect;
(xii) fully executed duplicate originals opinions of each counsel to Borrower in substantially the form of the Intercompany AgreementsExhibit H;
(xiii) fully executed subordination agreements from 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 Excluded Subsidiariesstates 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, Letter of Credit Issuer 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, shall be correct on and as of the Closing Date.
(d) 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 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).
(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 to items specified in subsection 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, or by Requisite Lenders with respect to items specified in subsection (v) below), 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 signing Credit 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 and 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 Lender requesting a Loan NoteNotes, each in a principal amount equal to 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 Credit 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;
(iv) such evidence the articles or certificate of incorporation or organization of Borrower and CPK Management Company as Agent may reasonably require to verify that each Credit Party 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 each Credit Party'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 Base Financial Statements, accompanied by Secretary of State of California as of a recent date.
(Avi) a certificate signed by a Responsible Officer of Borrower certifying (1A) that the conditions specified in Sections 4.01(c) and (d---------------- 4.01(d) have been satisfied satisfied, and (2B) that there has been no event or ------- circumstance since the date of the Base Audited Financial Statements which has a Material Adverse Effect and (B) a review letter by Arth▇▇ ▇▇▇e▇▇▇▇, ▇.L.P. concerning the method of preparation and apparent conformity to GAAP of such Base Financial Statements, which shall be in form and substance acceptable to AgentEffect;
(vivii) an opinion of counsel to Borrower, Guarantors, Borrower in form and the other Credit Parties substantially in the form of Exhibit E hereto;
(vii) a fully completed substance satisfactory to Administrative Agent and duly executed (i) Compliance Certificate using a determination date as of the fiscal quarter ending June 30, 2000, and calculated on a pro forma basis using reasonable assumptions so as to show the effect of the Extensions of Credit to be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date as of the calendar month ending June 30, 2000Lenders;
(viii) the Guaranty, Master Subsidiary Guaranty executed by each Subsidiary of Borrower, if any, required to be a party thereto on the Closing Date pursuant to Section 6.13Domestic Subsidiary;
(ix) the Collateral Documents, executed by the Borrower and the Guarantorseach applicable Domestic Subsidiary, in appropriate form for recording, filing or recording where necessary, together with:
(A) a duly completed Perfection Certificate for Borrower and each Guarantor;
(B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requestedPledge Agreement, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(D) all certificates and instruments representing the Pledged Collateral, together with, as applicable, undated stock transfer powers executed in blank with signatures guaranteed 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 the Administrative Agent may specifyrequest;
(D) such Security Agreement Supplements as Administrative Agent may request; and
(E) evidence that all other actions necessary or, in the reasonable opinion of the Agent or the LendersAdministrative Agent, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Administrative Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence that the Borrower shall have received not less than: (A) $11,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount of the Excluded Receivable, of not less than $25,000,000;
(xi) written evidence that the Existing Credit Agreement has been or will be concurrently is being terminated and all Liens securing obligations under the Existing Credit Agreement such facility have been or will be concurrently are being released;
(xiixi) fully executed duplicate originals evidence of each of the Intercompany Agreements;
(xiii) fully executed subordination agreements from each of the Excluded Subsidiariesinsurance coverage required under Section 6.06; and
(xivxii) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Letter of Credit Issuer 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, shall be correct in all material respects on and as of the Closing Date.
(d) Each Credit 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) 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 (b) Borrower's and its Subsidiaries' material computer applications and those of its key vendors and customers will, on a timely basis, adequately address the Year 2000 problem in all material respects.
(h) 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 the initial Extension of Credit hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by Agent with respect to immaterial matters or to items specified in subsection (iv) below with respect to which Borrower has given assurances satisfactory to Agent that they will be delivered promptly following the Closing Date, or by Requisite Lenders with respect to items specified in subsection (v) below), 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 signing Credit PartyOfficer, 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 and 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 Lender requesting a Loan Note, each in a principal amount equal to that such Lender's CommitmentLoan;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit 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;
(iv) such evidence as Administrative Agent 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 each jurisdiction in which it is required to be qualified to engage in business, including including, without limitation, certified copies of each Credit Borrower Party's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(v) the Base Financial Statements, accompanied by (A) a certificate signed by a Responsible Officer of Borrower Borrowers certifying that (1A) that the conditions specified in Sections 4.01(c4.01(e) and (d4.01(g) have been satisfied and (2B) that there has been no event or circumstance circumstances since the date of the Base Audited Financial Statements which has a Material Adverse Effect 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 review letter by Arth▇▇ ▇▇▇e▇▇▇▇, ▇.L.P. concerning manner satisfactory to Administrative Agent) constituting Casden Pledged Collateral evidencing any Pledged Collateral (other than the method of preparation Park La Brea and apparent conformity to GAAP of such Base Financial StatementsWestwood 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 acceptable to Agent;
(vi) an opinion of counsel to Borrower, Guarantors, and the other Credit Parties substantially in the form of Exhibit E hereto;
(vii) a fully completed and duly executed (i) Compliance Certificate using a determination date as of the fiscal quarter ending June 30, 2000, and calculated on a pro forma basis using reasonable assumptions so as to show the effect of the Extensions of Credit to be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date as of the calendar month ending June 30, 2000;
(viii) 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;
(ix) the Collateral Documents, executed by the Borrower and the Guarantors, in appropriate form for recording, where necessary, together with:
(A) a duly completed Perfection Certificate for Borrower and each Guarantor;
(B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(D) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify;
(E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Administrative Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence that the Borrower shall have received not less than: (A) $11,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount of the Excluded Receivable, of not less than $25,000,000;
(xi) written evidence that the Existing Credit Agreement has been or will be concurrently terminated and all Liens securing obligations under the Existing Credit Agreement have been or will be concurrently released;
(xii) fully executed duplicate originals of each of the Intercompany Agreements;
(xiii) fully executed subordination agreements from each of the Excluded Subsidiaries; 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 other assurances, certificates, documents, consents or opinions transactions had occurred as Agent, Letter of Credit Issuer or the Requisite Lenders reasonably may requiresuch 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, 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.
(df) 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), (i), (k), or (m), or Indebtedness or Liens otherwise permitted under this Agreement.
(g) Each Credit Borrower 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.
(eh) 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
Sources: Interim Credit Agreement (Apartment Investment & Management Co)
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 Agent with respect to immaterial matters or to items specified in subsection (iv) below with respect to which Borrower has given assurances satisfactory to Agent that they will be delivered promptly following the Closing DateLender, or by Requisite Lenders with respect to items specified in subsection (v) below), Agent's Lender’s receipt of the following, each of which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Credit 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 Agent Lender and its legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Agent, Lenders Lender and Borrower;
(ii) Notes if requested by Lender, a Note executed by Borrower in favor of each Lender requesting a Loan NoteLender, each in a principal amount equal to that Lender's the Commitment;
(iii) such certificates a certified resolution and an incumbency certificate of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Party as 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 thereofBorrower;
(iv) such evidence the articles or certificate of incorporation or organization of Borrower and CPK Management Company as Agent may reasonably require to verify that each Credit Party 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 each Credit Party'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 likebylaws 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 articles and bylaws need not be delivered hereunder to the extent not different from those previously delivered to Lender;
(v) a good standing certificate for Borrower and CPK Management Company, from the Base Financial Statements, accompanied by Secretary of State of California as of a recent date;
(Avi) a certificate signed by a Responsible Officer of Borrower certifying (1) that the conditions specified in Sections 4.01(c) and (d4.01(d) have been satisfied and (2) that there has been no event or circumstance since the date of the Base Financial Statements which has a Material Adverse Effect and (B) a review letter by Arth▇▇ ▇▇▇e▇▇▇▇, ▇.L.P. concerning the method of preparation and apparent conformity to GAAP of such Base Financial Statements, which shall be in form and substance acceptable to Agentsatisfied;
(vivii) an opinion of counsel to Borrower, Guarantors, Borrower in form and the other Credit Parties substantially in the form of Exhibit E hereto;
(vii) a fully completed and duly executed (i) Compliance Certificate using a determination date as of the fiscal quarter ending June 30, 2000, and calculated on a pro forma basis using reasonable assumptions so as substance satisfactory to show the effect of the Extensions of Credit to be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date as of the calendar month ending June 30, 2000Lender;
(viii) a Reaffirmation of the Guaranty, Master Subsidiary Guaranty executed by each Subsidiary of Borrower, if any, required to be a party thereto on the Closing Date pursuant to Section 6.13;
(ix) the Collateral Documents, executed by the Borrower and the Guarantors, in appropriate form for recording, where necessary, together with:
(A) a duly completed Perfection Certificate for Borrower and each Guarantor;
(B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(D) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify;
(E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been takenCPK Management Company; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence that the Borrower shall have received not less than: (A) $11,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount of the Excluded Receivable, of not less than $25,000,000;
(xi) written evidence that the Existing Credit Agreement has been or will be concurrently terminated and all Liens securing obligations under the Existing Credit Agreement have been or will be concurrently released;
(xii) fully executed duplicate originals of each of the Intercompany Agreements;
(xiii) fully executed subordination agreements from each of the Excluded Subsidiaries; and
(xivix) such other assurances, certificates, documents, consents or opinions as Agent, Letter of Credit Issuer or the Requisite Lenders 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, shall be correct in all material respects on and as of the Closing Date.
(d) Each Credit Party shall be in compliance with all the terms and provisions No Default or Event of the Loan Documents to which it is a party, and no Default shall have occurred and be continuing.
(e) Unless waived by AgentOther 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 shall have paid all Attorney Costs or its Subsidiaries, or (ii) to affect any transaction contemplated hereby or the ability of 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 Agent)its Subsidiaries under the Loan Documents to perform their respective obligations thereunder.
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 Agent with respect to immaterial matters or to items specified in subsection (iv) below with respect to which Borrower has given assurances satisfactory to Agent that they will be delivered promptly following the Closing DateLender, or by Requisite Lenders with respect to items specified in subsection (v) below), 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 the signing Credit 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 Agent Lender and its legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Agent, Lenders Lender and Borrower;
(ii) Notes if requested by Lender, a Note executed by Borrower in favor of each Lender requesting a Loan NoteLender, each in a principal amount equal to that Lender's the Commitment;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Borrower Party as 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;
(iv) such evidence as Agent 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 each jurisdiction in which it is required to be qualified to engage in business, including certified copies of each Credit Borrower Party's ’s Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(v) the Base Financial Statements, accompanied by (A) a certificate signed by a Responsible Officer of Borrower certifying (1A) that the conditions specified in Sections 4.01(c4.1(c) and (d) have been satisfied satisfied, and (2B) that there has been no event or circumstance since the date of the Base Audited Financial Statements which has a Material Adverse Effect and (B) a review letter by Arth▇▇ ▇▇▇e▇▇▇▇, ▇.L.P. concerning the method of preparation and apparent conformity to GAAP of such Base Financial Statements, which shall be in form and substance acceptable to AgentEffect;
(vi) an opinion of counsel to Borrower, Guarantors, and the other Credit Parties Borrower substantially in the form of Exhibit E D hereto;
(vii) a fully completed and duly executed (i) Compliance Certificate using a determination date as of the fiscal quarter ending June 30, 2000, and calculated on a pro forma basis using reasonable assumptions so as to show the effect of the Extensions of Credit to be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date as of the calendar month ending June 30, 2000;
(viii) 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;
(ix) the Collateral Documents, executed by the Borrower and the Guarantors, in appropriate form for recording, where necessary, together with:
(A) a duly completed Perfection Certificate for Borrower and each Guarantor;
(B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(D) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify;
(E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence that the Borrower shall have received not less than: (A) $11,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount of the Excluded Receivable, of not less than $25,000,000;
(xi) written evidence that the Existing Credit Agreement has been or will be concurrently terminated and all Liens securing obligations under the Existing Credit Agreement have been or will be concurrently released;
(xii) fully executed duplicate originals of each of the Intercompany Agreements;
(xiii) fully executed subordination agreements from each of the Excluded Subsidiaries; and
(xivvii) such other assurances, certificates, documents, consents or opinions as Agent, Letter of Credit Issuer or the Requisite Lenders 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, shall be correct on and as of the Closing Date.
(d) Each Credit 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 Agent, Borrower shall have paid all Attorney Costs of 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 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 by all Lenders (or by Agent with respect to immaterial matters or to items specified in subsection (iv) below with respect to which Borrower has given assurances satisfactory to Agent that they will be delivered promptly following Lenders, the Closing Date, or by Requisite Lenders with respect to items specified in subsection (v) below), 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 signing 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 and 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 requesting a Loan NoteLender, each in a principal amount equal to 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 each Credit Party 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;
(ivv) such evidence as Administrative Agent may reasonably require to verify that Borrower and each Credit Party 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 each Credit PartyBorrower's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(v) the Base Financial Statements, accompanied by (Avi) a certificate signed by a Responsible Officer of Borrower certifying (1A) that the conditions specified in Sections 4.01(c) and (d---------------- 4.01(d) have been satisfied and satisfied, (2B) that there has been no event or ------- circumstance since the date of the Base Audited Financial Statements which has a Material Adverse Effect Effect, and (BC) a review letter by Arth▇▇ ▇▇▇e▇▇▇▇that the Audited Financial Statements fairly present the financial position of Borrower and its subsidiaries as of December 31, ▇.L.P. concerning 1998 and fairly present the method result of preparation their operations and apparent conformity to GAAP of their cash flows for the period ending on such Base Financial Statements, which shall be in form and substance acceptable to Agentdate;
(vivii) an opinion of counsel to Borrower, GuarantorsBorrower in form and substance satisfactory to Administrative Agent, and such opinions of foreign counsel regarding the other Credit Parties substantially in the form pledge of Exhibit E hereto;
(vii) a fully completed and duly executed (i) Compliance Certificate using a determination date foreign stock as of the fiscal quarter ending June 30, 2000, and calculated on a pro forma basis using reasonable assumptions so collateral as shall be satisfactory to show the effect of the Extensions of Credit to be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date as of the calendar month ending June 30, 2000Administrative Agent;
(viii) 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;
(ix) the Collateral Documents, executed by the Borrower and the Guarantors, in appropriate form for recording, where necessary, together with:
(A) a duly completed Perfection Certificate for Borrower and each Guarantor;
(B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(D) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify;
(E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence that the Borrower shall have received not less than: (A) $11,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount of the Excluded Receivable, of not less than $25,000,000;
(xi) written evidence that the Existing Credit Agreement has been or will be concurrently terminated and all Liens securing obligations under the Existing Credit Agreement have been or will be concurrently released;
(xii) fully executed duplicate originals of each of the Intercompany Agreements;
(xiii) fully executed subordination agreements from each of the Excluded Subsidiaries; and
(xiv) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Letter of Credit Issuer 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, shall be correct on and as of the Closing Date.
(d) Each Credit Party Borrower 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
Sources: 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 to items specified in subsection subsections (ivv) 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, or by Requisite Lenders with respect to items specified in subsection (v) below), 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 signing Credit PartyBorrower, each dated on, or in the case of third-party certificates, recently before the Closing Date and each in form and substance satisfactory to Agent Administrative Agent, Lenders and its 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 requesting a Loan NoteLender, each in a principal amount equal to that such Lender's Commitment;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Party 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 each Credit Party 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 each Credit PartyBorrower's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(v) the Base Financial Statements, accompanied by (A) a certificate signed by a Responsible Officer of Borrower certifying (1A) that the conditions specified in Sections 4.01(c) and (d) have been satisfied and (2) that there has been no event or circumstance since the date of the Base Financial Statements which has a Material Adverse Effect and (B) a review letter by Arth▇▇ ▇▇▇e▇▇▇▇, ▇.L.P. concerning the method of preparation and apparent conformity to GAAP of such Base Financial Statements, which shall be in form and substance acceptable to Agent;
(vi) an opinion of counsel to Borrower, Guarantors, and the other Credit Parties substantially in the form of Exhibit E hereto;
(vii) a fully completed and duly executed (i) Compliance Certificate using a determination date as of the fiscal quarter ending June 30, 2000, and calculated on a pro forma basis using reasonable assumptions so as to show the effect of the Extensions of Credit to be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date as of the calendar month ending June 30, 2000;
(viii) 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;
(ix) the Collateral Documents, executed by the Borrower and the Guarantors, in appropriate form for recording, where necessary, together with:
(A) a duly completed Perfection Certificate for Borrower and each Guarantor;
(B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(D) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify;
(E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence that the Borrower shall have received not less than: (A) $11,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount of the Excluded Receivable, of not less than $25,000,000;
(xi) written evidence that the Existing Credit Agreement has been or will be concurrently terminated and all Liens securing obligations under the Existing Credit Agreement have been or will be concurrently released;
(xii) fully executed duplicate originals of each of the Intercompany Agreements;
(xiii) fully executed subordination agreements from each of the Excluded Subsidiaries; and
(xiv) such other assurances, certificates, documents, consents or opinions as 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, shall be are true and correct on and as of the Closing Date.
, (dB) Each Credit Party shall be 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.
(eb) 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
Sources: 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 to items specified in subsection (iv) below with respect to which Borrower has given assurances satisfactory to Agent that they will be delivered promptly following the Closing Dateand Lenders, or by Requisite Lenders with respect to items specified in subsection (v) below), 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 signing Credit PartyBorrower, each dated on, or in the case of third-party certificates, recently before the Closing Date and each in form and substance satisfactory to Agent Administrative Agent, Lenders and its 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 requesting a Loan NoteLender, each in a principal amount equal to that 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 each Credit Party 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 each Credit Party 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 each Credit Party's Borrower’s Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(v) the Base Financial Statements, accompanied by (Avii) a certificate signed by a Responsible Officer of Borrower certifying (1A) that the conditions specified in Sections 4.01(c) and (d) have been satisfied and (2) that there has been no event or circumstance since the date of the Base Financial Statements which has a Material Adverse Effect and (B) a review letter by Arth▇▇ ▇▇▇e▇▇▇▇, ▇.L.P. concerning the method of preparation and apparent conformity to GAAP of such Base Financial Statements, which shall be in form and substance acceptable to Agent;
(vi) an opinion of counsel to Borrower, Guarantors, and the other Credit Parties substantially in the form of Exhibit E hereto;
(vii) a fully completed and duly executed (i) Compliance Certificate using a determination date as of the fiscal quarter ending June 30, 2000, and calculated on a pro forma basis using reasonable assumptions so as to show the effect of the Extensions of Credit to be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date as of the calendar month ending June 30, 2000;
(viii) 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;
(ix) the Collateral Documents, executed by the Borrower and the Guarantors, in appropriate form for recording, where necessary, together with:
(A) a duly completed Perfection Certificate for Borrower and each Guarantor;
(B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(D) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify;
(E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence that the Borrower shall have received not less than: (A) $11,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount of the Excluded Receivable, of not less than $25,000,000;
(xi) written evidence that the Existing Credit Agreement has been or will be concurrently terminated and all Liens securing obligations under the Existing Credit Agreement have been or will be concurrently released;
(xii) fully executed duplicate originals of each of the Intercompany Agreements;
(xiii) fully executed subordination agreements from each of the Excluded Subsidiaries; and
(xiv) such other assurances, certificates, documents, consents or opinions as 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 herein are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Closing Date.
Date (d) Each Credit Party 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;
(viii) 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 last day of the month during which the initial Extension of Credit is to be made; and
(ix) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or Requisite Lenders reasonably may require.
(eb) 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.
(d) 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
Sources: 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 to items specified in subsection (ivv) 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, or by Requisite Lenders with respect to items specified in subsection (v) below), 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 signing Credit PartyBorrower, each dated on, or in the case of third-party certificates, recently before the Closing Date and each in form and substance satisfactory to Lenders and Administrative Agent and its their 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 requesting a Loan Note, each in a principal amount equal to that Lender's Commitmentsame;
(iii) Competitive Loan Notes executed by Borrower in favor of each Lender requesting same;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Party 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;
(ivv) such evidence as Administrative Agent and 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 each jurisdiction in which it is required to be qualified to engage in businessbusiness (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 each Credit Party's its Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(v) the Base Financial Statements, accompanied by (Avi) a certificate signed by a Responsible Officer of Borrower certifying (1A) that the conditions specified in Sections 4.01(c) and (d) have been satisfied and satisfied, (2B) that there has been no event or circumstance since the date of the Base Audited Financial Statements which has a Material Adverse Effect Effect; and (BC) a review letter by Arth▇▇ ▇▇▇e▇▇▇▇the current Debt Ratings, ▇.L.P. concerning the method of preparation and apparent conformity to GAAP of such Base Financial Statements, which shall be in form and substance acceptable to Agentif applicable;
(vivii) an opinion of counsel to Borrower, Guarantors, Borrower in form and the other Credit Parties substantially in the form of Exhibit E hereto;
(vii) a fully completed and duly executed (i) Compliance Certificate using a determination date as of the fiscal quarter ending June 30, 2000, and calculated on a pro forma basis using reasonable assumptions so as to show the effect of the Extensions of Credit to be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date as of the calendar month ending June 30, 2000;
(viii) 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;
(ix) the Collateral Documents, executed by the Borrower and the Guarantors, in appropriate form for recording, where necessary, together with:
(A) a duly completed Perfection Certificate for Borrower and each Guarantor;
(B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence substance satisfactory to the Administrative Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(D) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify;
(E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence that the Borrower shall have received not less than: (A) $11,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount of the Excluded Receivable, of not less than $25,000,000;
(xi) written evidence that the Existing Credit Agreement has been or will be concurrently terminated and all Liens securing obligations under the Existing Credit Agreement have been or will be concurrently released;
(xii) fully executed duplicate originals of each of the Intercompany Agreements;
(xiii) fully executed subordination agreements from each of the Excluded Subsidiaries; and
(xivviii) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Letter of Credit Issuer 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, shall be correct in all material respects on and as of the Closing Date.
(d) Each Credit Party Borrower 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 Agent, Borrower shall have paid all Attorney Costs of 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 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 Agent with respect to immaterial matters or to items specified in subsection (iv) below with respect to which Borrower has given assurances satisfactory to Agent that they will be delivered promptly following the Closing Date, or by Requisite Lenders with respect to items specified in subsection (v) below), 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 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 Agent and its legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Agent, Lenders and Borrower;
(ii) Notes executed by Borrower in favor of each Lender requesting a Loan Note, each in a principal amount equal to that Lender's Commitment;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Party as 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;
(iv) such evidence as Agent 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 each jurisdiction in which it is required to be qualified to engage in business, including certified copies of each Credit Party's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(v) the Base Financial Statements, accompanied by (A) a certificate signed by a Responsible Officer of Borrower certifying (1) that the conditions specified in Sections 4.01(c) and (d) have been satisfied and (2) that there has been no event or circumstance since the date of the Base Financial Statements which has a Material Adverse Effect and (B) a review letter by Arth▇▇ ▇▇▇e▇▇▇▇, ▇.L.P. concerning the method of preparation and apparent conformity to GAAP of such Base Financial Statements, which shall be in form and substance acceptable to Agent;
(vi) an opinion of counsel to Borrower, Guarantors, and the other Credit Parties substantially in the form of Exhibit E hereto;
(vii) a fully completed and duly executed (i) Compliance Certificate using a determination date as of the fiscal quarter ending June 30, 2000, and calculated on a pro forma basis using reasonable assumptions so as to show the effect of the Extensions of Credit to be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date as of the calendar month ending June 30, 2000;
(viii) 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;
(ix) the Collateral Documents, executed by the Borrower and the Guarantors, in appropriate form for recording, where necessary, together with:
(A) a duly completed Perfection Certificate for Borrower and each Guarantor;
(B) acknowledgment copies of all UCC-l UCC-1 financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(D) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify;
(E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence that the Borrower shall have received not less than: (A) $11,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount of the Excluded Receivable, of not less than $25,000,000;
(xi) written evidence that the Existing Credit Agreement has been or will be concurrently terminated and all Liens securing obligations under the Existing Credit Agreement have been or will be concurrently released;
(xii) fully executed duplicate originals of each of the Intercompany Agreements;
(xiii) fully executed subordination agreements from each of the Excluded Subsidiaries; and
(xiv) such other assurances, certificates, documents, consents or opinions as 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, shall be correct on and as of the Closing Date.
(d) 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 shall have occurred and be continuing.
(e) Unless waived by Agent, Borrower shall have paid all Attorney Costs of 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 Agent).
Appears in 1 contract
Sources: Credit Agreement (Central Financial Acceptance 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 to items specified in subsection 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, or by Requisite Lenders with respect to items specified in subsection (v) below), 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 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 and 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 requesting a Committed Loan Note, each in a principal amount equal to 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 each Credit 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;
(ivv) such evidence as Administrative Agent 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 each jurisdiction in which it is required to be qualified to engage in business, including certified copies of each Credit Party's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(v) the Base Financial Statements, accompanied by (Avi) a certificate signed by a Responsible Officer of Borrower certifying (1A) that the conditions specified in Sections SECTIONS 4.01(c) and (d) have been satisfied and (2B) that there has been no event or circumstance since the date of the Base Audited Financial Statements which has a Material Adverse Effect and (B) a review letter by Arth▇▇ ▇▇▇e▇▇▇▇, ▇.L.P. concerning the method of preparation and apparent conformity to GAAP of such Base Financial Statements, which shall be in form and substance acceptable to AgentEffect;
(vivii) an opinion of counsel to Borrower, Guarantors, Borrower and the other Credit Parties Guarantors substantially in the form of Exhibit E EXHIBIT F hereto;
(viiviii) a fully completed written evidence that the Existing Credit Facility has been or will be concurrently terminated and duly executed (i) Compliance Certificate using a determination date as of all Liens securing obligations under the fiscal quarter ending June 30, 2000, and calculated on a pro forma basis using reasonable assumptions so as to show the effect of the Extensions of Existing Credit to Facility has been or will be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date as of the calendar month ending June 30, 2000concurrently released;
(viiiix) 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 SECTION 6.13;
(ix) the Collateral Documents, executed by the Borrower and the Guarantors, in appropriate form for recording, where necessary, together with:
(A) a duly completed Perfection Certificate for Borrower and each Guarantor;
(B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(D) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify;
(E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence that the Borrower shall have received not less than: (A) $11,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount of the Excluded Receivable, of not less than $25,000,000;
(xi) written evidence that the Existing Credit Agreement has been or will be concurrently terminated and all Liens securing obligations under the Existing Credit Agreement have been or will be concurrently released;
(xii) fully executed duplicate originals of each of the Intercompany Agreements;
(xiii) fully executed subordination agreements from each of the Excluded Subsidiaries; and
(xiv) 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, shall be correct on and as of the Closing Date.
(d) 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 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 Bank to make its initial Extension of Credit hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders Banks (or by Agent with respect to immaterial matters or to items specified in subsection (iv) or (v) below with respect to which Borrower has given assurances satisfactory to Agent that they will be delivered promptly following the Closing Effective Date, or by Requisite Lenders with respect to items specified in subsection (v) below), 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 signing Credit Borrower Party, each dated on, or in the case of third-party certificates, recently before the Closing Effective Date and each in form and substance satisfactory to Agent and its legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Agent, Lenders Banks and Borrower;
(ii) Term Notes executed by Borrower in favor of each Lender requesting a Loan NoteBank, each in a principal amount equal to that Lendersuch Bank's Term Loan Commitment and Revolving Credit Notes executed by Borrower in favor of each Bank, each in a principal amount equal to such Bank's Revolving Credit Commitment;
(iii) executed counterparts of the Guaranty Agreement and all other Security Documents, sufficient in number for distribution to Agent, Banks and the Borrower Parties that are parties thereto;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Borrower Party as 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;
(ivv) such evidence as Agent 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 each jurisdiction in which it is required to be qualified to engage in business, including certified copies of each Credit Borrower Party's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(v) the Base Financial Statements, accompanied by (Avi) a certificate signed by a Responsible Officer of Borrower certifying (1A) that the conditions specified in Sections 4.01(c) and (d) have been satisfied satisfied, and (2B) that there has been no event or circumstance since the date of the Base Audited Financial Statements which has a Material Adverse Effect and Effect;
(Bvii) a review letter by Arthopinions of counsel of Cor▇▇▇▇ ▇▇s▇▇▇▇ ▇▇y▇▇▇▇ ▇▇▇e▇▇▇ ▇▇▇▇▇▇▇▇ & Cas▇▇▇, ▇.L.P. concerning .L.P., counsel for the method of preparation and apparent conformity to GAAP of such Base Financial Statements, which shall be in form and substance acceptable to Agent;
(vi) an opinion of counsel to Borrower, GuarantorsBorrower Parties, and Lyt▇▇, Sou▇▇ & Cur▇▇▇, ▇ professional corporation, special Federal Aviation Act counsel for the other Credit Parties substantially Borrower Parties, as to the matters set forth in Exhibits F-1 and F-2, respectively, with such changes as approved by the form of Exhibit E hereto;
(vii) a fully completed and duly executed (i) Compliance Certificate using a determination date as of the fiscal quarter ending June 30, 2000Banks in their sole discretion, and calculated on a pro forma basis using reasonable assumptions so as to show the effect of the Extensions of Credit to be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date such other matters as of the calendar month ending June 30, 2000any Bank may reasonably require;
(viii) the Guaranty, executed by evidence satisfactory to Agent and each Subsidiary of Borrower, if any, required to be a party thereto on the Closing Date pursuant to Section 6.13;
(ix) the Collateral Documents, executed by the Borrower and the Guarantors, in appropriate form for recording, where necessary, together with:
Bank that (A) Borrower has subjected to a duly completed Perfection Certificate for Borrower valid and each Guarantor;
(B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the perfected first priority security interests interest in favor of the Agent for the ratable benefit of the Lenders, Creditors one or other evidence satisfactory more Aviation Units acceptable to the Agent that there has been filedand each Bank, registered or recorded all financing statements having an aggregate Appraised Value (in the case of any Aviation Units more than one year old, as specified by the Independent Appraiser in a written opinion addressed and other filings, registrations and recordings necessary and advisable delivered to perfect the Liens of the Agent for and each Creditor) at least equal to the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requested$72,000,000, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(DB) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify;
(E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents Appropriate Actions have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection taken with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been takenrespect thereto; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence that the Borrower shall have received not less than: (A) $11,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount of the Excluded Receivable, of not less than $25,000,000;
(xi) written evidence that the Existing Credit Agreement has been or will be concurrently terminated and all Liens securing obligations under the Existing Credit Agreement have been or will be concurrently released;
(xii) fully executed duplicate originals of each of the Intercompany Agreements;
(xiii) fully executed subordination agreements from each of the Excluded Subsidiaries; and
(xivix) such other assurances, certificates, documents, consents or opinions as Agent, Letter of Credit Issuer Issuing Bank or the Requisite Lenders Banks reasonably may require.
(b) Any fees required to be paid on or before the Closing Effective 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 Effective Date.
(d) Each Credit 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 Agent, Borrower shall have paid all Attorney Costs of Agent to the extent invoiced prior to or on the Closing Effective 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 Agent).Attorney
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 to items specified in subsection (iv) below with respect to which Borrower has given assurances satisfactory to Agent that they will be delivered promptly following the Closing Dateand Lenders, or by Requisite Lenders with respect to items specified in subsection (v) below), 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 signing Credit PartyBorrower, each dated on, or in the case of third-party certificates, recently before the Closing Date and each in form and substance satisfactory to Agent Administrative Agent, Lenders and its 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 Lender requesting a Loan Notesuch Lender, each in a principal amount equal to that 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 each Credit Party 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 each Credit Party 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 each Credit Party's Borrower’s Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(v) the Base Financial Statements, accompanied by (Avii) a certificate signed by a Responsible Officer of Borrower certifying (1A) that the conditions specified in Sections 4.01(c) and (d) have been satisfied and (2) that there has been no event or circumstance since the date of the Base Financial Statements which has a Material Adverse Effect and (B) a review letter by Arth▇▇ ▇▇▇e▇▇▇▇, ▇.L.P. concerning the method of preparation and apparent conformity to GAAP of such Base Financial Statements, which shall be in form and substance acceptable to Agent;
(vi) an opinion of counsel to Borrower, Guarantors, and the other Credit Parties substantially in the form of Exhibit E hereto;
(vii) a fully completed and duly executed (i) Compliance Certificate using a determination date as of the fiscal quarter ending June 30, 2000, and calculated on a pro forma basis using reasonable assumptions so as to show the effect of the Extensions of Credit to be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date as of the calendar month ending June 30, 2000;
(viii) 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;
(ix) the Collateral Documents, executed by the Borrower and the Guarantors, in appropriate form for recording, where necessary, together with:
(A) a duly completed Perfection Certificate for Borrower and each Guarantor;
(B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(D) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify;
(E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence that the Borrower shall have received not less than: (A) $11,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount of the Excluded Receivable, of not less than $25,000,000;
(xi) written evidence that the Existing Credit Agreement has been or will be concurrently terminated and all Liens securing obligations under the Existing Credit Agreement have been or will be concurrently released;
(xii) fully executed duplicate originals of each of the Intercompany Agreements;
(xiii) fully executed subordination agreements from each of the Excluded Subsidiaries; and
(xiv) such other assurances, certificates, documents, consents or opinions as 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 herein are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Closing Date.
Date (d) Each Credit Party 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 ADIC Material Adverse Change since the date of the Audited Financial Statements;
(viii) 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 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;
(ix) the Term Loans shall have received a rating from ▇▇▇▇▇’▇ and S&P at least five (5) days prior to the Closing Date; and Quantum Corporation Credit Agreement
(x) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Issuing Lender or Requisite Lenders reasonably may require.
(eb) 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.
(d) 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
Sources: Credit Agreement (Quantum Corp /De/)
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation obligations of each Lender the Lenders and the Issuing Bank to make its the initial Extension of Credit hereunder is subject to satisfaction shall not become effective until the date on which each of the following conditions precedent:is satisfied (or waived in accordance with Section 10.01):
(a) Unless waived by all Lenders (or by Agent with respect to immaterial matters or to items specified in subsection (iv) below with respect to which Borrower has given assurances satisfactory to Agent that they will be delivered promptly following the Closing Date, or by Requisite Lenders with respect to items specified in subsection (v) below), 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 signing Credit Loan Party, each dated onthe Effective Date (or, or in the case of third-party certificatescertificates of governmental officials, recently a recent date before the Closing Date Effective Date) and each in form and substance satisfactory to the Administrative Agent and its legal counselthe Lenders:
(i) executed counterparts of this AgreementAgreement and the Collateral Documents, sufficient in number for distribution to Agentas reasonably deemed advisable by the Administrative Agent or its counsel, Lenders and Borrowereach dated as of the Effective Date;
(ii) Notes a Note executed by the Borrower in favor of each Lender requesting a Loan Note, each in a principal amount equal to that Lender's Commitment;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Loan Party as the Administrative Agent may reasonably require to establish evidencing the identities of and verify the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer thereofin connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such evidence documents and certifications as the Administrative Agent may reasonably require to verify evidence that each Credit Party the Borrower is duly organized or formed, validly existing, existing and in good standing and qualified to engage in business in each the jurisdiction in which it is required to be qualified to engage in business, including certified copies of each Credit Party's Organization Documents, certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the likeits organization;
(v) the Base Financial Statements, accompanied by (A) a certificate signed by a Responsible Officer of the Borrower certifying (1A) that the conditions specified representations and warranties contained in Sections 4.01(c) Article V are true and correct in all material respects on and as of the Effective Date, (d) have been satisfied and (2B) that no Default has occurred and is continuing under this Agreement as of the Effective Date after giving effect to the initial Extension of Credit hereunder, (C) there has been no event not occurred any event, circumstance or circumstance since the date of the Base Financial Statements which has condition that is or could reasonably be expected to result in a Material Adverse Effect and Effect, (BD) a review letter by Arth▇▇ ▇▇▇e▇▇▇▇, ▇.L.P. concerning the method of preparation and apparent conformity to GAAP of such Base Financial Statements, which shall be in form and substance acceptable to Agent;
(vi) an opinion of counsel to Borrower, Guarantors, and the other Credit Parties substantially in the form of Exhibit E hereto;
(vii) a fully completed and duly executed (i) Compliance Certificate using a determination date that as of the fiscal quarter ending June 30, 2000, and calculated on a pro forma basis using reasonable assumptions so as to show the effect Effective Date there are no environmental issues affecting any Loan Party or any of the Extensions of Credit Collateral that could reasonably be expected to be made on the Closing Date result in a Material Adverse Effect, (E) all necessary governmental and (ii) Borrowing Base Certificate using a determination date as third party approvals necessary or required for any Loan Party to enter into this Agreement or any of the calendar month ending June 30Loan Documents has been obtained, 2000;
(viiiF) except as previously disclosed by the GuarantyBorrower in writing, executed by each Subsidiary of Borrowerthere is no litigation, if anyinvestigation or proceeding known to and affecting the General Partner, Borrower or any other Loan Party for which the Borrower is required to be a party thereto on the Closing Date give notice pursuant to Section 6.13;
6.03(c) (ixor, if there is any such litigation, investigation or proceeding, then a notice containing the information required by Section 6.03(c) shall be given concurrently with the Collateral Documentsdelivery of the certificate given pursuant to this clause (F)), executed and (G) that no action, suit, investigation or proceeding is pending or to his or her knowledge, threatened in any court or before any arbitrator or Governmental Authority by or against the General Partner, the Borrower or any of their respective properties, that (y) could reasonably be expected to materially and adversely affect the Borrower and the Guarantors, in appropriate form for recordingtaken as a whole, where necessary, together with:or (z) seeks to affect or pertains to any transaction contemplated hereby or the ability of the Borrower or any Guarantor to perform its obligations under the Loan Documents;
(vi) a certificate of a Responsible Officer (A) a duly completed Perfection Certificate for Borrower and each Guarantor;
(B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent Borrower demonstrating compliance with all financial covenants on a pro forma basis for the benefit of the Lendersquarter ended March 31, or other evidence satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(D) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify;
(E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence that the Borrower shall have received not less than: (A) $11,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock 2010 and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount of the Excluded Receivable, of not less than $25,000,000;
(xi) written evidence that the Existing Credit Agreement has been or will be concurrently terminated and all Liens securing obligations under the Existing Credit Agreement have been or will be concurrently released;
(xii) fully executed duplicate originals of each of the Intercompany Agreements;
(xiii) fully executed subordination agreements from each of the Excluded Subsidiaries; and
(xiv) such other assurances, certificates, documents, consents or opinions Borrower as 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, shall be correct on and as of the Closing Date.
(d) 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 shall have occurred and be continuing.
(e) Unless waived by Agent, Borrower shall have paid all Attorney Costs of Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts satisfaction 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 Agent).all conditions specified in this Section 4.01
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 Agent with respect to immaterial matters or to items specified in subsection (iv) below with respect to which Borrower has given assurances satisfactory to Agent that they will be delivered promptly following the Closing DateLender, or by Requisite Lenders with respect to items specified in subsection (v) below), 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 the signing Credit PartyBorrower, each dated on, or in the case of third-party certificates, recently before the Closing Date and each in form and substance satisfactory to Agent Lender and its legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Agent, Lenders Lender and Borrower;
(ii) Notes the Note executed by Borrower in favor of each Lender requesting a Loan Note, each in a principal amount equal to that 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 ▇▇▇▇▇ Fargo Foothill, Inc. loan to Borrower;
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Party Borrower as 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;
(ivvii) such evidence as Agent 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 each jurisdiction in which it is required to be qualified to engage in businessDelaware and California, including certified copies of each Credit Party's Organization Documents, Borrower’s certificates of good standing and/or qualification to engage in business, tax clearance certificates, and the like;
(v) the Base Financial Statements, accompanied by (Aviii) a certificate signed by a Responsible Officer of Borrower certifying (1A) that the conditions specified 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 Sections 4.01(cwhich 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 (d) have been satisfied and (2C) that there has been no event or circumstance since the date of the Base Audited Financial Statements which has a Material Adverse Effect and (B) a review letter by Arth▇▇ ▇▇▇e▇▇▇▇, ▇.L.P. concerning the method of preparation and apparent conformity to GAAP of such Base Financial Statements, which shall be in form and substance acceptable to Agent;
(vi) an opinion of counsel to Borrower, Guarantors, and the other Credit Parties substantially in the form of Exhibit E hereto;
(vii) a fully completed and duly executed (i) Compliance Certificate using a determination date as of the fiscal quarter ending June 30, 2000, and calculated on a pro forma basis using reasonable assumptions so as to show the effect of the Extensions of Credit to be made on the Closing Date and (ii) Borrowing Base Certificate using a determination date as of the calendar month ending June 30, 2000;
(viii) the Guaranty, executed by each Subsidiary of Borrower, if any, required to be a party thereto on the Closing Date pursuant to Section 6.13Effect;
(ix) the Collateral Documents, executed by the opinions of counsel to Borrower and the Guarantors, any Subsidiary in appropriate form for recording, where necessary, together with:
(A) a duly completed Perfection Certificate for Borrower and each Guarantor;
(B) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence substance satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law;
(C) written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(D) all certificates and instruments representing the Pledged Collateral, stock transfer powers executed in blank with signatures guaranteed as the Agent may specify;
(E) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(F) funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements and the Mortgages;
(G) such consents, estoppels, rights of entry and removal, subordination agreements, control agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to, or having an interest in or controlling or in the possession of, any Collateral as to which the Agent shall be granted a Lien for the benefit of the Lenders, as requested by the Agent or any Lender;
(H) evidence that all other actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken; and
(I) certificates of insurance and standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower;
(x) Evidence a certificate in form and substance satisfactory to Lender certifying that the Borrower shall have received not less than: and its Subsidiaries on a consolidated basis held unrestricted cash (Aand cash equivalents) of $11,000,000 in cash 10,000,000 or contributed assets (other than the Excluded Receivable) from the issuance by the Borrower of Preferred Stock and (B) $14,000,000 in cash or contributed assets (other than the Excluded Receivable) from the issuance of common stock and that, after giving effect thereto, Borrower has a Consolidated Net Worth, after deducting the amount more as of the Excluded Receivable, of not less than $25,000,000;
(xi) written evidence that the Existing Credit Agreement has been or will be concurrently terminated and all Liens securing obligations under the Existing Credit Agreement have been or will be concurrently released;
(xii) fully executed duplicate originals of each last day of the Intercompany Agreements;
(xiii) fully executed subordination agreements from each month prior to the month during which the initial Extension of the Excluded SubsidiariesCredit is to be made; and
(xivxi) such other assurances, certificates, documents, consents or opinions as Agent, Letter of Credit Issuer or the Requisite Lenders 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, shall be correct on and as of the Closing Date.
(d) 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 shall have occurred and be continuing.
(e) Unless waived by AgentLender, Borrower shall have paid all Attorney Costs of 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 AgentLender).
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