Additional Backstop Parties Sample Clauses
Additional Backstop Parties. Section 2.7(b) of the BCA shall be deleted in its entirety.
Additional Backstop Parties
Additional Secured Parties The benefit of the provisions of the Loan Documents directly relating to the Collateral or any Lien granted thereunder shall extend to and be available to any Secured Party that is not a Lender or L/C Issuer party hereto, provided that, by accepting such benefits, such Secured Party agrees, as among the Administrative Agent and all other Secured Parties, that such Secured Party is bound by (and, if requested by the Administrative Agent shall confirm such agreement in a writing in form and substance acceptable to the Administrative Agent) this Article VIII, Section 9.3, Section 9.9, Section 9.10, Section 9.11, Section 9.17, Section 9.24 and Section 10.1 (and, solely with respect to L/C Issuers, subsection 1.1(c)) and the decisions and actions of the Administrative Agent and the Required Lenders (or, where expressly required by the terms of this Agreement, a greater proportion of the Lenders or other parties hereto as required herein) to the same extent a Lender is bound; provided, however, that, notwithstanding the foregoing, (a) such Secured Party shall be bound by Section 8.8 only to the extent of Liabilities, costs and expenses with respect to or otherwise relating to the Collateral held for the benefit of such Secured Party, in which case the obligations of such Secured Party thereunder shall not be limited by any concept of pro rata share or similar concept, (b) the Administrative Agent, the Lenders and the L/C Issuers party hereto shall be entitled to act at its sole discretion, without regard to the interest of such Secured Party, regardless of whether any Obligation to such Secured Party thereafter remains outstanding, is deprived of the benefit of the Collateral, becomes unsecured or is otherwise affected or put in jeopardy thereby, and without any duty or liability to such Secured Party or any such Obligation and (c) except as otherwise set forth herein, such Secured Party shall not have any right to be notified of, consent to, direct, require or be heard with respect to, any action taken or omitted in respect of the Collateral or under any Loan Document.
Additional Lenders (a) For a period of 60 days after extension of a Termination Date pursuant to Section 2.16(a) that has resulted in a reduction of the aggregate Commitments of the Lenders, the Borrower may request that one or more additional banks or other Persons (each, an "Additional Lender") become party to this Agreement as Lenders and that the aggregate amount of the Commitments of the Lenders be increased to reflect the Commitments allocated to each such Additional Lender; provided, that the aggregate Commitments of the Lenders after giving effect to such increase shall not exceed the aggregate Commitments of the Lenders immediately prior to such former Termination Date. Addition of an Additional Lender shall be made only with the written consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed) and with the written consent of the Borrower (which consent may be granted or withheld in its absolute discretion). Each Additional Lender must be an Eligible Assignee and, without the consent of the Administrative Agent, the initial Commitment of each Additional Lender shall not be less than $10,000,000. (b) Addition of an Additional Lender shall be effected by the Additional Lender executing and delivering to the Administrative Agent, for its acceptance and recording in the Register, a duly completed Additional Lender Supplement in substantially the form of Exhibit G attached hereto. The Borrower shall execute and deliver to the Administrative Agent for transmittal to such Additional Lender a Note in substantially the form of Exhibit A attached hereto in the amount of the Commitment of such Additional Lender. Acceptance by the Administrative Agent of an Additional Lender is subject to the conditions that the Administrative Agent shall have received, with a counterpart for each Lender, (i) a certificate of a duly authorized officer of the Borrower, dated the effective date of such Additional Lender Supplement, as to the accuracy, both before and after giving effect to such proposed addition, of the representations and warranties set forth in Section 4.01 and as to the absence, both before and after giving effect to such proposed extension, of any Event of Default or event that with the giving of notice or the passage of time or both would constitute an Event of Default, (ii) certified copies of all corporate and governmental approvals, if any, required to be obtained by the Borrower in connection with such proposed addition, (iii) an opinion of counsel to the Borrower (who shall be satisfactory to the Administrative Agent) as to the matters set forth in Exhibit D (appropriately modified to include, in addition to the other matters set forth therein, such Additional Lender Supplement and the new Note), and such other matters as any Lender, through the Administrative Agent, may reasonably request, and (iv) such other certificates and documents as the Administrative Agent may reasonably request, all of the foregoing to be satisfactory in form and substance to the Administrative Agent. Upon execution and delivery of the Additional Lender Supplement, acceptance by the Administrative Agent and recording in the Register, from and after the effective date specified in such Additional Lender Supplement, such Additional Lender shall be a party hereto and shall, to the extent of the Commitment specified in such Additional Lender Supplement, have the rights and obligations of a Lender hereunder. (c) If, at the time an Additional Lender is to become party to this Agreement, the continuing Lenders have any outstanding Advances, such Additional Lender shall offer to purchase from each continuing Lender, effective as of the date such Additional Lender becomes party to this Agreement, a portion of each continuing Lender's outstanding Advances, in such amounts as will have the result that, immediately after giving effect to such Additional Lender becoming party to this Agreement and to such purchases, each Lender (including the Additional Lender) shall share in the outstanding Advances in the same proportion as their respective Commitments. The Additional Lender shall offer in writing to purchase the requisite portion of each continuing Lender's outstanding Advances, at a price equal to the outstanding principal amount thereof together with accrued and unpaid interest thereon to the date of purchase, and a continuing Lender shall not unreasonably decline to accept such offer. Each such purchase shall be made in accordance with Section 8.07 (with the related Assignment and Acceptance modified, mutatis mutandis, to reflect that such purchase is not a purchase of any portion of the Commitment of the continuing Lender). Such purchases shall not be subject to the provisions of clause (ii) of Section 8.07(a), and the Borrower shall be responsible for all amounts payable to the Administrative Agent pursuant to clause (iv) of Section 8.07(a). The Borrower shall pay to each continuing Lender on demand any amount that would be payable to such continuing Lender pursuant to Section 8.04(b) (which for this purpose shall be applied as if such assignment were a prepayment of the Advances assigned by such continuing Lender), and shall reimburse each continuing Lender on demand for all reasonable fees and expenses (including reasonable fees and expenses of counsel) incurred by it in connection with such assignment.
Additional L/C Issuers Any Lender hereunder may become an L/C Issuer upon receipt by the Administrative Agent of a fully executed Notice of Additional L/C Issuer which shall be signed by the Borrower, the Administrative Agent and each L/C Issuer. Such new L/C Issuer shall provide its L/C Commitment in such Notice of Additional L/C Issuer and upon the receipt by the Administrative Agent of the fully executed Notice of Additional L/C Issuer, the defined term L/C Commitment shall be deemed amended to incorporate the L/C Commitment of such new L/C Issuer.
Authorization Purchase and Sale Terms of the Sponsor Warrants A. Authorization of the Sponsor Warrants. The Company has duly authorized the issuance and sale of the Sponsor Warrants to the Purchaser. B. Purchase and Sale of the Sponsor Warrants. (i) As payment in full for the 7,000,000 Sponsor Warrants being purchased under this Agreement, Purchaser shall pay $7,000,000 (the “Purchase Price”), by wire transfer of immediately available funds or by such other method as may be reasonably acceptable to the Company, to the trust account (the “Trust Account”) maintained by Continental Stock Transfer & Trust Company, acting as trustee (“Continental”), or into an escrow account maintained by Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP (“EG&S”), counsel for the Company, at least one (1) business day prior to the date of effectiveness of the Registration Statement. (ii) The closing of the purchase and sale of the Sponsor Warrants shall take place simultaneously with the closing of the Public Offering (the “Closing Date”). The closing of the purchase and sale of the Sponsor Warrants shall take place at the offices of EG&S, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, or such other place as may be agreed upon by the parties hereto.
Representations and Warranties of the Company and the Selling Stockholders (a) The Company hereby represents and warrants to each Underwriter as follows: (i) On the Effective Date, the Registration Statement complied, and on the date of the Prospectus, on the date any post-effective amendment to the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is filed with the Commission and on each Closing Date, the Registration Statement and the Prospectus (and any amendment thereof or supplement thereto) will comply, in all material respects, with the applicable provisions of the Securities Act and the Rules; (ii) The documents that are incorporated by reference in the preliminary prospectus and the Prospectus or from which information is so incorporated by reference, when they became effective or were filed with the Commission, as the case may be, complied in all material respects with the requirements of the Securities Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are filed with the Commission, conform in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is a validly existing corporation under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered to