Certain Conditions. The Borrower may request, and the Lenders shall be required to make Committed Advances pursuant to Section 2.1.1, for the purpose of acquiring (the "ACQUISITION") a Real Property (a) that, once acquired, qualifies as an Unencumbered Asset (including the previous approval by the Required Lenders pursuant to subsection (vii) of the definition of "Unencumbered Asset"), and (b) without inclusion of which in the Unencumbered Pool, the Borrower would not be in compliance with Section 7.4 giving effect to such Advances, if, in addition to the other conditions set forth in this Agreement (including Section 4.2), all of the following conditions shall be satisfied as of the Funding Date: 4.3.1.1. The Borrower shall be in compliance with Section 7.4 giving effect to the Acquisition and the funding of the Committed Advances; 4.3.1.2. The Borrower shall have previously delivered to the Agent and the Lenders the information required to be delivered to them under the definition of "Unencumbered Asset" as to such Real Property, and such Real Property shall have been approved as eligible for inclusion in the Unencumbered Pool as contemplated by clause (ii) of such definition; 4.3.1.3. The Borrower shall have delivered to the Agent a separate Notice of Borrowing with respect to that portion of such Committed Advances that could not be made in compliance with Section 7.4 without giving effect to the inclusion of such Real Property in the Unencumbered Pool (such portion being the "ACQUISITION ADVANCES"); 4.3.1.4. The Borrower shall have delivered to the Agent concurrently with its Notice of Borrowing referred to in Section 4.3.1.3 above, a certificate in the form attached hereto as Exhibit B-5, duly executed by a Senior Officer of the Borrower, describing the Real Property to be acquired, designating such Real Property as an Unencumbered Asset effective upon consummation of the Acquisition, and setting forth the Unencumbered Asset Value of such Real Property as if it were an Unencumbered Asset as of the date of such Notice of Borrowing (the "PRO FORMA UNENCUMBERED ASSET VALUE"); 4.3.1.5. All statements set forth in the certificate referred to in 4.3.1.4 above shall be true and correct as of the date thereof and the Funding Date; 4.3.1.6. The Borrower shall have provided to the Agent and the Lenders such information as may be reasonably requested by the Agent and the Lenders in order to verify the terms, timing and method of payment specified in the contract between a Borrower Party, as purchaser of the Real Property to be acquired, and the seller of such property (the "ACQUISITION AGREEMENT"), or to determine compliance with this Section 4.3.; and
Appears in 1 contract
Certain Conditions. The Borrower may request, and the Lenders shall be required to make Committed Advances pursuant to Section 2.1.1, for the purpose of acquiring (the "ACQUISITION") a Real Property (a) that, once acquired, qualifies as an Unencumbered Asset (including The obligation of the previous approval Company to consummate the Recapitalization shall be subject to the satisfaction or waiver by the Required Lenders pursuant to subsection (vii) of the definition of "Unencumbered Asset"), and (b) without inclusion of which in the Unencumbered Pool, the Borrower would not be in compliance with Section 7.4 giving effect to such Advances, if, in addition to the other conditions set forth in this Agreement (including Section 4.2), all Company of the following conditions shall be satisfied as of the Funding Dateconditions:
4.3.1.1. The Borrower shall be in compliance with Section 7.4 giving effect to (i) the Acquisition representations and the funding of the Committed Advances;
4.3.1.2. The Borrower shall have previously delivered to the Agent and the Lenders the information required to be delivered to them under the definition of "Unencumbered Asset" as to such Real Property, and such Real Property shall have been approved as eligible for inclusion in the Unencumbered Pool as contemplated warranties made by clause (ii) of such definition;
4.3.1.3. The Borrower shall have delivered to the Agent a separate Notice of Borrowing with respect to that portion of such Committed Advances that could not be made in compliance with Section 7.4 without giving effect to the inclusion of such Real Property in the Unencumbered Pool (such portion being the "ACQUISITION ADVANCES");
4.3.1.4. The Borrower shall have delivered to the Agent concurrently with its Notice of Borrowing referred to each Shareholder in Section 4.3.1.3 above, a certificate in the form attached hereto as Exhibit B-5, duly executed by a Senior Officer of the Borrower, describing the Real Property to be acquired, designating such Real Property as an Unencumbered Asset effective upon consummation of the Acquisition, and setting forth the Unencumbered Asset Value of such Real Property as if it were an Unencumbered Asset as of the date of such Notice of Borrowing (the "PRO FORMA UNENCUMBERED ASSET VALUE");
4.3.1.5. All statements set forth in the certificate referred to in 4.3.1.4 above 4 hereof shall be true and correct in all material respects at the Closing Date as if made on the Closing Date and each Shareholder shall have performed in all material respects all obligations and conditions required herein or by any other Recapitalization Document to have been performed or complied with by it on or prior to the Closing;
(ii) each of the date thereof Recapitalization Documents shall have been executed and delivered by each other party thereto;
(iii) the Funding Company shall have filed the Amended and Restated Articles of Incorporation with the Secretary of State of the State of Texas, which Amended and Restated Articles of Incorporation shall be in full force and effect on the Closing Date;
4.3.1.6. The Borrower (iv) no action, suit, proceeding or investigation by any Governmental Entity shall be pending or, so far as is known to the Company or the Shareholders, be threatened, and no Governmental Entity shall have provided enacted an order or injunction which is in effect, which, in the case of such action, suit, proceeding, investigation, order or injunction, challenges the transactions contemplated by this Agreement or any other Recapitalization Document or seeks to restrain or prevent the consummation of the transactions contemplated hereunder or thereunder; and
(v) the Company shall have obtained any and all consents (including the consent of the lenders required pursuant to the Agent Credit Agreement and of Northwestern pursuant to the Northwestern Agreement), permits and waivers necessary or appropriate for consummation of the transactions contemplated by this Agreement and the Lenders other Recapitalization Documents.
(b) The obligation of each Shareholder to consummate the Recapitalization shall be subject to the satisfaction or waiver by such information as may Shareholder of the following conditions:
(i) the representations and warranties made by each other Shareholder or the Company in Section 4 or Section 5 hereof shall be reasonably requested by true and correct in all material respects at the Agent and the Lenders in order to verify the terms, timing and method of payment specified in the contract between a Borrower PartyClosing Date, as purchaser of if made on the Real Property to be acquiredClosing Date, and the seller Company and each other Shareholder shall have performed in all material respects all obligations and conditions required herein or by any other Recapitalization Document to have been performed or complied with by it on or prior to the Closing under this Agreement;
(ii) each of the Recapitalization Documents shall have been executed and delivered by each party thereto other than such Shareholder;
(iii) the Company shall have filed the Amended and Restated Articles of Incorporation with the Secretary of State of the State of Texas, which Amended and Restated Articles of Incorporation shall be in full force and effect on the Closing Date;
(iv) no action, suit, proceeding or investigation by any Governmental Entity shall be pending or, so far as is known to the Company or the Shareholders, be threatened, and no Governmental Entity shall have enacted an order or injunction which is in effect, which, in the case of such property action, suit, proceeding, investigation, order or injunction, challenges the transactions contemplated by this Agreement or any other Recapitalization Document or seeks to restrain or prevent the consummation of the transactions contemplated hereunder or thereunder;
(v) the "ACQUISITION AGREEMENT"Company shall have obtained any and all consents (including the consent of the lenders required pursuant to the Credit Agreement and of Northwestern pursuant to the Northwestern Agreement), permits and waivers necessary or to determine compliance with appropriate for consummation of the transactions contemplated by this Agreement and the other Recapitalization Documents;
(vi) each of the conditions set forth in Section 4.3.6 of the Stock Purchase Agreement (other than the conditions set forth in Section 6(a)(vii) and Section 6(b)(ix)) shall have been satisfied; and
(vii) each of Windward LP and Windward LLC shall have received federal funds reference numbers or other confirmation satisfactory to it evidencing that the purchase price to be received by it from PPM and NY Life for the Share Purchase as provided in the Stock Purchase Agreement have been sent by wire transfer of immediately available funds.
Appears in 1 contract
Sources: Recapitalization Agreement (Monitronics International Inc)
Certain Conditions. The Borrower may request, It will be a condition of Syntone’s rights hereunder to have Registrable Securities owned by it registered that: (i) Syntone will reasonably cooperate with Outlook by supplying information and executing documents relating to Syntone or the Lenders shall be required to make Committed Advances pursuant to Section 2.1.1, for the purpose securities of acquiring (the "ACQUISITION") a Real Property (a) that, once acquired, qualifies as an Unencumbered Asset (including the previous approval Outlook owned by the Required Lenders pursuant to subsection (vii) of the definition of "Unencumbered Asset"), Syntone in connection with such registration; and (b) without inclusion of which in the Unencumbered Pool, the Borrower would not be in compliance with Section 7.4 giving effect to such Advances, if, in addition to the other conditions set forth in this Agreement (including Section 4.2), all of the following conditions shall be satisfied as of the Funding Date:
4.3.1.1. The Borrower shall be in compliance with Section 7.4 giving effect to the Acquisition and the funding of the Committed Advances;
4.3.1.2. The Borrower shall have previously delivered to the Agent and the Lenders the information required to be delivered to them under the definition of "Unencumbered Asset" as to such Real Property, and such Real Property shall have been approved as eligible for inclusion in the Unencumbered Pool as contemplated by clause (ii) Syntone will enter into such undertakings and take such other actions relating to the conduct of the proposed offering that Outlook or the underwriters may request as being necessary to ensure compliance with federal and state securities laws and the securities laws of any applicable jurisdiction and the rules or other requirements of the applicable exchange. In the event of any registration under the Securities Act of any Registrable Securities pursuant to this Section 7, Outlook will indemnify and hold harmless Syntone, each of its directors, its officers, and its equity holders against such losses, claims, damages or liabilities (including reimbursement for reasonable and documented legal and other expenses) to which Syntone or any such director, officer or equity holder may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities arise out of or are based upon a Violation; provided, however, that the indemnity agreement contained in this Section 7.10 will not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without Outlook’s consent, which consent will not be unreasonably withheld, nor will Outlook be liable in any such case for any such loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation that occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any of such definition;
4.3.1.3. The Borrower shall have delivered indemnified parties; and provided, further that Syntone will indemnify and hold harmless Outlook, each of its directors, its officers, and each person, if any, who controls Outlook within the meaning of the Securities Act, and any underwriter, and any other third party, as applicable, selling securities under such registration statement, against such losses, claims, damages or liabilities (including reimbursement for reasonable and documented legal and other expenses) to which Outlook or any such director, officer, controlling person, underwriter or other third party who may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities arise out of or are based upon a Syntone Violation, in each case, to the Agent a separate Notice of Borrowing extent (and only to the extent) that such Syntone Violation occurs in reliance upon and in conformity with respect to that portion written information furnished expressly for use in connection with such registration by any of such Committed Advances indemnified parties, provided, however, that could the indemnity agreement contained in this Section 7.10 will not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without Syntone’s consent, which consent will not be made unreasonably withheld; provided, further, that in compliance with no event shall the obligations of Syntone in this Section 7.4 without giving effect 7.10 exceed the net proceeds received by it from the sale of its Registrable Securities related to the inclusion of such Real Property matter in the Unencumbered Pool (such portion being the "ACQUISITION ADVANCES");
4.3.1.4. The Borrower shall have delivered to the Agent concurrently with its Notice of Borrowing referred to in Section 4.3.1.3 above, a certificate in the form attached hereto as Exhibit B-5, duly executed by a Senior Officer of the Borrower, describing the Real Property to be acquired, designating such Real Property as an Unencumbered Asset effective upon consummation of the Acquisition, and setting forth the Unencumbered Asset Value of such Real Property as if it were an Unencumbered Asset as of the date of such Notice of Borrowing (the "PRO FORMA UNENCUMBERED ASSET VALUE");
4.3.1.5. All statements set forth in the certificate referred to in 4.3.1.4 above shall be true and correct as of the date thereof and the Funding Date;
4.3.1.6. The Borrower shall have provided to the Agent and the Lenders such information as may be reasonably requested by the Agent and the Lenders in order to verify the terms, timing and method of payment specified in the contract between a Borrower Party, as purchaser of the Real Property to be acquired, and the seller of such property (the "ACQUISITION AGREEMENT"), which losses or to determine compliance with this Section 4.3damages are sought.; and
Appears in 1 contract
Sources: Stock Purchase Agreement (Outlook Therapeutics, Inc.)
Certain Conditions. The Borrower may request, and the Lenders shall be required to make Committed Advances pursuant to Section 2.1.1, for the purpose of acquiring (the "ACQUISITION") a Real Property (a) that, once acquired, qualifies as an Unencumbered Asset (including the previous approval by the Required Lenders pursuant to subsection (vii) commitment of the definition of "Unencumbered Asset"), and Purchasers hereunder is subject to the conditions (b) without inclusion of which in the Unencumbered Pool, the Borrower would not be in compliance with Section 7.4 giving effect to such Advances, if, in addition to the other conditions set forth or referred to elsewhere herein and in this the Term Sheet) that (i) except as disclosed in SEC reports filed by CCC prior to the date hereof or otherwise previously disclosed to the Purchasers either (i) in writing by the Sponsor or (ii) as part of the schedules to the Acquisition Agreement (including Section 4.2draft copies of which have been provided to the Purchasers on or prior to the date hereof), all there shall not have occurred or become known to the Purchasers any event, change or effect since June 30, 2005 that has caused a material adverse effect on the business, financial condition, assets, liabilities or results of operations of CCC and its subsidiaries, taken as a whole (a “Material Adverse Effect”), provided that none of the following conditions shall be satisfied as taken into account in determining whether there is a Material Adverse Effect (a) changes or effects which are or result from occurrences relating to the United States economy generally or the industries in which CCC operates that do not materially and disproportionately affect CCC, (b) changes or effects which result directly from the announcement of the Funding Date:
4.3.1.1. The Borrower shall Acquisition Agreement, the Acquisition or the transactions contemplated thereby, (c) changes or effects which are or result from changes in applicable Laws (as defined in the Acquisition Agreement) after the date of execution of the Acquisition Agreement, or (d) changes or effects which are or result from changes in generally accepted accounting principles after the date of execution of the Acquisition Agreement, (ii) all financial projections concerning CCC and its subsidiaries, the Issuers and the Transactions (the “Projections”) that have been made or will be prepared by or on behalf of you or any of your affiliates, representatives or advisors and that have been or will be made available to us in compliance connection with Section 7.4 the Transactions have been and will be prepared in good faith based upon assumptions believed by you to be reasonable at the time made (it being understood that projections are subject to uncertainties and contingencies and that actual results may differ from such projections), (iii) with respect to the Purchaser’s commitment to purchase Purchaser Equity Securities, such Purchaser Equity Securities constituting at least 5.5% of the equity of Holdings immediately after giving effect to the Acquisition Closing calculated on a Fully Diluted Basis, (iv) the Issuers complying in all material respects with all of their respective obligations under this letter, and (v) the funding negotiation, execution and delivery on or before the Closing Date of the Committed Advances;
4.3.1.2Definitive Agreements in accordance with the terms hereof. The Borrower For purposes of clarity, the Purchasers’ commitment to purchase the Notes hereunder shall have previously delivered to the Agent and the Lenders the information required to be delivered to them under the definition of "Unencumbered Asset" as to such Real Property, and such Real Property shall have been approved as eligible for inclusion in the Unencumbered Pool as contemplated by clause (ii) of such definition;
4.3.1.3. The Borrower shall have delivered to the Agent a separate Notice of Borrowing with respect to that portion of such Committed Advances that could not be made in compliance with Section 7.4 without giving effect to conditioned on the inclusion of such Real Property in the Unencumbered Pool (such portion being the "ACQUISITION ADVANCES");
4.3.1.4. The Borrower shall have delivered to the Agent concurrently with its Notice of Borrowing referred to in Section 4.3.1.3 above, a certificate in the form attached hereto as Exhibit B-5, duly executed by a Senior Officer Purchasers’ purchase of the Borrower, describing the Real Property to be acquired, designating such Real Property as an Unencumbered Asset effective upon consummation of the Acquisition, and setting forth the Unencumbered Asset Value of such Real Property as if it were an Unencumbered Asset as of the date of such Notice of Borrowing (the "PRO FORMA UNENCUMBERED ASSET VALUE");
4.3.1.5. All statements set forth in the certificate referred to in 4.3.1.4 above shall be true and correct as of the date thereof and the Funding Date;
4.3.1.6. The Borrower shall have provided to the Agent and the Lenders such information as may be reasonably requested by the Agent and the Lenders in order to verify the terms, timing and method of payment specified in the contract between a Borrower Party, as purchaser of the Real Property to be acquired, and the seller of such property (the "ACQUISITION AGREEMENT"), or to determine compliance with this Section 4.3Purchaser Equity Securities.; and
Appears in 1 contract
Sources: Commitment Letter Agreement (CCC Information Services Group Inc)
Certain Conditions. The Borrower may requestcontinuing obligations of each Consenting Party set forth in Section 3.01 hereof, following the occurrence of the PSA Effective Date, are subject to the following conditions:
(a) the Plan and Plan Documents shall (i) be in form and substance reasonably acceptable to each of the Requisite Consenting Noteholders and the Plan Proponents and (ii) only in the case of AMT, not materially adversely affect the AMT Claims Treatment; provided, however, that any documents with respect to the Rights Offering, including without limitation, the Backstop Commitment Agreement, and the Lenders Registration Rights Agreement shall, in each case, be filed contemporaneously with the Plan and be acceptable to each of the Requisite Consenting Noteholders in their sole discretion; provided, further, that the foregoing consent rights of the Requisite Consenting Noteholders with respect to the CDB Amendments shall expire as of December 18, 2014 (except for any amendments, restatements, modifications or refinancing of the CDB Agreements that are proposed from and after December 18, 2014 (“Subsequent CDB Amendments”), which Subsequent CDB Amendments shall be required reasonably acceptable to make Committed Advances pursuant to Section 2.1.1, for the purpose of acquiring (the "ACQUISITION") a Real Property (a) that, once acquired, qualifies as an Unencumbered Asset (including the previous approval by the Required Lenders pursuant to subsection (vii) Company and each of the definition of "Unencumbered Asset"Requisite Consenting Noteholders), and it being understood that the CDB Amendments shall be deemed reasonably acceptable to the Requisite Consenting Noteholders in the absence of the delivery to the Company of any written objection thereto by any of the Requisite Consenting Noteholders on or before December 17, 2014; and
(b) without inclusion of which in the Unencumbered Pool, the Borrower would not be in compliance with Section 7.4 giving effect to such Advances, if, in addition to the other conditions set forth in this Agreement (including Section 4.2), all of the following conditions shall be satisfied as of the Funding Date:
4.3.1.1. The Borrower shall be in compliance with Section 7.4 giving effect to the Acquisition and the funding of the Committed Advances;
4.3.1.2. The Borrower shall have previously delivered to not been terminated in accordance with the Agent and the Lenders the information required to be delivered to them under the definition of "Unencumbered Asset" as to such Real Property, and such Real Property shall have been approved as eligible for inclusion in the Unencumbered Pool as contemplated by clause (ii) of such definition;
4.3.1.3. The Borrower shall have delivered to the Agent a separate Notice of Borrowing with respect to that portion of such Committed Advances that could not be made in compliance with Section 7.4 without giving effect to the inclusion of such Real Property in the Unencumbered Pool (such portion being the "ACQUISITION ADVANCES");
4.3.1.4. The Borrower shall have delivered to the Agent concurrently with its Notice of Borrowing referred to in Section 4.3.1.3 above, a certificate in the form attached hereto as Exhibit B-5, duly executed by a Senior Officer of the Borrower, describing the Real Property to be acquired, designating such Real Property as an Unencumbered Asset effective upon consummation of the Acquisition, and setting forth the Unencumbered Asset Value of such Real Property as if it were an Unencumbered Asset as of the date of such Notice of Borrowing (the "PRO FORMA UNENCUMBERED ASSET VALUE");
4.3.1.5. All statements set forth in the certificate referred to in 4.3.1.4 above shall be true and correct as of the date thereof and the Funding Date;
4.3.1.6. The Borrower shall have provided to the Agent and the Lenders such information as may be reasonably requested by the Agent and the Lenders in order to verify the terms, timing and method of payment specified in the contract between a Borrower Party, as purchaser of the Real Property to be acquired, and the seller of such property (the "ACQUISITION AGREEMENT"), or to determine compliance with this Section 4.3terms hereof.; and
Appears in 1 contract
Certain Conditions. The Borrower may request, and obligations of the Lenders shall be required Plan Sponsors to make Committed Advances consummate the Restructuring Transactions pursuant to Section 2.1.1, for the purpose of acquiring (Plan and on the "ACQUISITION") a Real Property (a) that, once acquired, qualifies as an Unencumbered Asset (including the previous approval by the Required Lenders pursuant to subsection (vii) of the definition of "Unencumbered Asset"), and (b) without inclusion of which in the Unencumbered Pool, the Borrower would not be in compliance with Section 7.4 giving effect to such Advances, if, in addition to the other conditions terms set forth in this Section 7 are subject to the following conditions:
(a) this Agreement shall have become effective in accordance with the provisions of Section 2 hereof;
(including b) this Agreement shall not have been terminated in accordance with the terms of Section 4.2), all 10 hereof;
(c) the Board of Directors of Novation shall have approved the Restructuring Transactions;
(d) each of the following conditions Definitive Documents shall be satisfied in form and substance acceptable to the Plan Sponsors;
(e) the Debtors shall have met the Milestones set forth on Exhibit G hereto;
(f) With respect to the DIP Facility, the Bankruptcy Court shall have entered the Interim Financing Order and Final Financing Order, as of applicable, in form and substance acceptable to Plan Sponsors and the Funding Date:
4.3.1.1. The Borrower Debtors shall be in compliance with Section 7.4 giving effect the covenants in the DIP Facility Documents;
(g) the Debtors shall have obtained entry of an order by the Bankruptcy Court approving the NOL Motion on terms reasonably satisfactory in form and substance to the Acquisition Plan Sponsors;
(h) the Bankruptcy Court shall have entered an order approving the Debtors’ assumption of this Agreement;
(i) Plan Sponsor tax counsel ▇▇▇▇▇ ▇▇▇▇▇ LLP shall have issued an opinion that the transactions contemplated by the Plan, individually and in the funding aggregate, will not result in the application of Section 382(a) of the Committed AdvancesCode to Novation;
4.3.1.2. The Borrower (j) With respect to the Plan:
(i) the Bankruptcy Court shall have previously delivered entered the Confirmation Order, which shall be a final and non-appealable order,
(ii) all conditions precedent to the Agent and occurrence of the Lenders the information required to be delivered to them under the definition of "Unencumbered Asset" as to such Real Property, and such Real Property Plan Effective Date shall have been approved as eligible satisfied;
(iii) the Consenting Noteholders approving the Restructuring Transaction shall have provided reasonable and customary releases to the Companies and the Plan Sponsors pursuant to the Plan;
(iv) the Debtors shall have received any necessary regulatory approvals and material third party consents, on terms reasonably satisfactory to the Plan Sponsors; and
(v) to the extent requested by the Plan Sponsors, the Bankruptcy Court shall have authorized the Debtors to adopt the Tax Preservation Rights Plan for inclusion Reorganized Novation and to amend the Novation certificate of incorporation prohibiting transfers of equity of 4.9% or more;
(k) for the period prior to the Confirmation Date, there shall have been no material adverse change in the Unencumbered Pool as contemplated by clause business, results of operations, prospects, condition (iifinancial or otherwise) or assets of such definitionthe Companies for the period from the Petition Date to the Confirmation Date, and for the period from the Confirmation Date to the Plan Effective Date, there shall have been no material adverse change in the business, results of operations, prospects, condition (financial or otherwise) or assets of the Companies for the period from the Confirmation Date to the Plan Effective Date; requirements;
4.3.1.3. The Borrower (l) Novation shall have delivered been delisted and not subject to SEC reporting
(m) Novation shall have represented and warranted to the Agent a separate Notice Plan Sponsors the amount of Borrowing with respect to that portion of such Committed Advances that could not be made in compliance with Section 7.4 without giving effect to net operating losses and capital loss carryovers available (including the inclusion of such Real Property in amount, the Unencumbered Pool (such portion being year the "ACQUISITION ADVANCES");
4.3.1.4. The Borrower shall have delivered to the Agent concurrently with its Notice of Borrowing referred to in Section 4.3.1.3 above, a certificate in the form attached hereto as Exhibit B-5, duly executed by a Senior Officer of the Borrower, describing the Real Property to be acquired, designating such Real Property as an Unencumbered Asset effective upon consummation of the Acquisitionloss incurred, and setting forth the Unencumbered Asset Value of such Real Property as if it were an Unencumbered Asset as of the date of such Notice of Borrowing (the "PRO FORMA UNENCUMBERED ASSET VALUE");
4.3.1.5. All statements set forth in the certificate referred to in 4.3.1.4 above shall be true expiration period) and correct as of the date thereof and the Funding Date;
4.3.1.6. The Borrower shall have provided to the Agent Plan Sponsors a detailed capitalization disclosures and a list of its largest shareholders as of the Lenders such information Plan Effective Date as may well as its latest financial statements and disclosures around its list of bank accounts, prior taxes paid and any existing liens;
(n) The Exit Funding shall be reasonably requested sufficient to satisfy all payments necessary to implement the Plan and for the Effective Date to occur, including payment in full of all Allowed Other Secured Claims, Allowed Priority Non-Tax Claims, Allowed Priority Tax Claims, and Allowed Administrative Claims (including Allowed Fee Claims to the extent not already satisfied from amounts held in the Professional Fee Escrow Account, and United States Trustee Fee Claims), as well as any outstanding WSFS Fees, but specifically excluding any amounts necessary to pay those amounts set forth on the GUC Schedule.
(o) There shall not have been filed proofs of claim against the Companies asserting General Unsecured Claims that the Plan Sponsors believe in good faith, after consulting with the Companies, to be allowable, in the aggregate, in an amount in excess of 150% of the amount, in the aggregate, set forth on the GUC Schedule.
(p) The Board of Directors of Novation shall have selected a Chief Executive Officer for Reorganized Novation that is satisfactory to the Plan Sponsors and whose employment shall commence no later than the Effective Date; and
(q) The Companies shall have maintained insurance policies deemed necessary or appropriate by the Agent Plan Sponsors, including without limitation, general liability, D&O, E&O and the Lenders in order to verify the terms, timing and method of payment specified in the contract between a Borrower Party, as purchaser of the Real Property to be acquired, and the seller of such property (the "ACQUISITION AGREEMENT"), or to determine compliance with this Section 4.3key man insurance policies.; and
Appears in 1 contract
Sources: Restructuring Support Agreement
Certain Conditions. The Borrower may request, and the Lenders shall be required to make Committed Advances pursuant to Section 2.1.1, for the purpose of acquiring (the "ACQUISITION") a Real Property (a) thatThe following shall be conditions to EIS's and EPIL's obligation to execute and deliver the Definitive Documents and to thereafter consummate the transactions contemplated hereby and thereby (such transactions, once acquiredthe "Closing"; the date of such Closing, qualifies the "Closing Date"): (1) EIS shall have completed a due diligence review in accordance with Section 4(d) below, the results of which shall be satisfactory to EIS, in its sole discretion; (2)
(a) EPHI shall have executed and delivered and issued to EIS, as an Unencumbered Asset (including applicable, a Securities Purchase Agreement and certificates in respect of the previous approval preferred stock, common stock and warrant to be issued thereunder, a Registration Rights Agreement and such other reasonable and customary documents and instruments as provided therein or as EIS may otherwise reasonably request in respect of the transactions contemplated by the Required Lenders pursuant to subsection (vii) of the definition of "Unencumbered Asset")Financing Term Sheet, and (b) without inclusion EPHI shall have executed and delivered the Licenses and such other reasonable and customary documents and instruments as provided therein or as EPIL may otherwise reasonably request in respect of which in the Unencumbered Pooltransactions contemplated by the License Term Sheet, the Borrower would not be in compliance with Section 7.4 giving effect to such Advances, ifwhich, in addition to the other conditions set forth in this Agreement (including Section 4.2)each case, all of the following conditions when duly executed and delivered by EPHI shall be satisfied as of the Funding Date:
4.3.1.1. The Borrower valid and enforceable and in full force and effect and there shall be in compliance with Section 7.4 giving effect to the Acquisition and the funding of the Committed Advances;
4.3.1.2. The Borrower no breach or default by EPHI thereunder; (3) there shall not have previously delivered to the Agent and the Lenders the information required to be delivered to them under the definition of "Unencumbered Asset" as to such Real Property, and such Real Property shall have been approved as eligible for inclusion in the Unencumbered Pool as contemplated by clause (ii) of such definition;
4.3.1.3. The Borrower shall have delivered to the Agent a separate Notice of Borrowing with respect to that portion of such Committed Advances that could not be made in compliance with Section 7.4 without giving effect to the inclusion of such Real Property in the Unencumbered Pool (such portion being the "ACQUISITION ADVANCES");
4.3.1.4. The Borrower shall have delivered to the Agent concurrently with its Notice of Borrowing referred to in Section 4.3.1.3 above, a certificate in the form attached hereto as Exhibit B-5, duly executed by a Senior Officer of the Borrower, describing the Real Property to be acquired, designating such Real Property as an Unencumbered Asset effective upon consummation of the Acquisition, and setting forth the Unencumbered Asset Value of such Real Property as if it were an Unencumbered Asset as of occurred from the date hereof through and including the Closing Date any material adverse change in EPHI's business, condition (financial or otherwise) or prospects; (4) EPHI shall not have breached or defaulted in any of such Notice of Borrowing (the "PRO FORMA UNENCUMBERED ASSET VALUE");
4.3.1.5. All statements set forth in the certificate referred to in 4.3.1.4 above its material obligations hereunder and its representations herein shall be true and correct in all material respects, as if made on the Closing Date; (5) no consent, approval or filing (with any governmental authority or otherwise) on the part of EPHI shall be required for the execution of the date Definitive Documents, or if required, such approval shall have been obtained and any applicable waiting periods in respect thereof shall have elapsed, and provisions for the securing of all such third-party consents necessary for the consummation of the transactions contemplated by the Definitive Documents shall have been made; and (6) the execution and delivery of the Definitive Documents and the Funding Date;
4.3.1.6. The Borrower Closing shall have occurred on or prior to September 30, 1998.
(b) The following shall be conditions to EPHI's obligation to execute and deliver the Definitive Documents and to thereafter consummate the transactions contemplated hereby and thereby: (1)(a) EIS shall have executed and delivered and issued to EPHI a Securities Purchase Agreement, a Registration Rights Agreement and such other reasonable and customary documents and instruments as provided therein or as EPHI may otherwise reasonably request in respect of the transactions contemplated by the Financing Term Sheet and (b) EPIL shall have executed and delivered the Licenses and such other reasonable and customary documents and instruments as provided therein or as EPHI may otherwise reasonably request in respect of the transactions contemplated by the License Term Sheet, which, in each case, when duly executed and delivered by EPIL shall be valid and enforceable and in full force and effect and there shall be no breach or default by EPIL thereunder; (2) EIS and EPIL shall not have breached or defaulted in any of their material obligations hereunder and their representations herein shall be true and correct in all material respects, as if made on the Closing Date; (3) no consent, approval or filing (with any governmental authority or otherwise) on the part of EPIL and EIS shall be required for the execution of the Definitive Documents, or if required, such approval shall have been obtained and any applicable waiting periods in respect thereof shall have elapsed, and provisions for the securing of all such third-party consents necessary for the consummation of the transactions contemplated by the Definitive Documents shall have been made; and (4) the execution and delivery of the Definitive Documents and the Closing shall have occurred on or prior to September 30, 1998.
(c) In the event that the Closing shall not have been consummated on or prior to September 30, 1998 (other than as a result of the material breach or default hereunder by either party), the non-defaulting party or parties shall have the right to terminate this letter agreement by written notice to the Agent other, whereupon the transactions contemplated hereby shall be canceled and of no further force and effect; provided, that each party shall remain liable to the Lenders other for or in respect of any breach or default which shall have occurred prior to such information as may be reasonably requested by the Agent and the Lenders in order to verify the terms, timing and method of payment specified in the contract between a Borrower Party, as purchaser of the Real Property to be acquired, and the seller of such property (the "ACQUISITION AGREEMENT"), or to determine compliance with this Section 4.3date.; and
Appears in 1 contract
Sources: License and Financing Transaction (Electropharmacology Inc)
Certain Conditions. The Borrower may requestinitial availability of the Credit Facility will be conditioned upon, among other things, satisfaction of conditions precedent in accordance with the Existing Agreement and any others appropriate as a result of the Lenders Acquisition. Such conditions shall be required to make Committed Advances pursuant to Section 2.1.1include, for the purpose of acquiring (the "ACQUISITION") a Real Property without limitation:
(a) thatThe Company, once acquiredAcquisitionCo and Target shall have entered into a definitive Merger Agreement, qualifies as an Unencumbered Asset (including in form and substance reasonably satisfactory to the previous approval Banks, providing for the Tender Offer and the Merger with a tender offer price and merger price consistent with the cost of the Acquisition previously disclosed in writing by the Required Lenders pursuant Borrower to subsection (vii) of CSI and Chemical; the definition of "Unencumbered Asset"), and (b) without inclusion of which in the Unencumbered Pool, the Borrower would not be in compliance with Section 7.4 giving effect to such Advances, if, in addition to the other conditions set forth in this Merger Agreement (including Section 4.2), all of the following conditions shall be satisfied as of the Funding Date:
4.3.1.1. The Borrower shall be in compliance with Section 7.4 giving effect to the Acquisition and the funding of the Committed Advances;
4.3.1.2. The Borrower shall have previously delivered to the Agent and the Lenders the information required to be delivered to them under the definition of "Unencumbered Asset" as to such Real Property, and such Real Property shall have been approved as eligible by the Boards of Directors of the Company, AcquisitionCo and Target and the Tender Offer and the Merger provided for inclusion thereby shall have been recommended by the Board of Directors of Target to the shareholders of Target; and the Merger Agreement shall be in full force and effect.
(b) AcquisitionCo shall have acquired concurrently with the making of the initial Loans on the Closing Date not less than a majority of the issued and outstanding common stock of Target (on a fully diluted basis) and there shall not have been any material change in the Unencumbered Pool as contemplated by clause (ii) number of shares of such definition;capital stock outstanding (on a fully diluted basis).
4.3.1.3. (c) The Borrower Banks shall be satisfied that the Credit Facility, the use of proceeds thereof and the collateral security therefor comply in all respects with Regulations G and U of the Board of Governors of the Federal Reserve System.
(d) The terms and conditions of the Tender Offer (including, without limitation, the cost of the Acquisition as previously disclosed to Chemical) shall have delivered been reasonably acceptable to the Agent a separate Notice of Borrowing Banks and all documents and materials then filed publicly with respect to that portion of such Committed Advances that could not be made in compliance with Section 7.4 without giving effect the Tender Offer and the Merger shall have been reasonably acceptable to the inclusion of such Real Property in the Unencumbered Pool (such portion being the "ACQUISITION ADVANCES");
4.3.1.4. The Borrower shall have delivered to the Agent concurrently with its Notice of Borrowing referred to in Section 4.3.1.3 above, a certificate in the form attached hereto as Exhibit B-5, duly executed by a Senior Officer of the Borrower, describing the Real Property to be acquired, designating such Real Property as an Unencumbered Asset effective upon consummation of the Acquisition, and setting forth the Unencumbered Asset Value of such Real Property as if it were an Unencumbered Asset as of the date of such Notice of Borrowing (the "PRO FORMA UNENCUMBERED ASSET VALUE");
4.3.1.5. All statements set forth in the certificate referred to in 4.3.1.4 above shall be true and correct as of the date thereof and the Funding Date;
4.3.1.6. The Borrower shall have provided to the Agent and the Lenders such information as may be reasonably requested by the Agent and the Lenders in order to verify the terms, timing and method of payment specified in the contract between a Borrower Party, as purchaser of the Real Property to be acquired, and the seller of such property (the "ACQUISITION AGREEMENT"), or to determine compliance with this Section 4.3Administrative Agent.; and
Appears in 1 contract
Sources: Tender Offer Statement
Certain Conditions. (a) The Borrower may requestobligations of each Plan Sponsor to consummate the transactions contemplated herein shall be subject to the satisfaction (or waiver by the Plan Sponsors) of each of the following conditions:
(i) (x) the Confirmation Order, in a form satisfactory to the Plan Sponsor, shall have been entered by the Bankruptcy Court, which order shall provide for, among other things, the approval, and the Lenders execution and delivery by the ▇▇▇▇▇▇▇ Parties where applicable, of this Plan Sponsorship Agreement, the Plan, and each of the other definitive documents necessary to effect the Reorganization by each ▇▇▇▇▇▇▇ Party, as applicable, including the First Lien Documents, the Second Lien Documents and the Third Lien Documents, (y) no order staying, reversing, modifying, or amending the Confirmation Order shall be required in effect, and (z) none of the ▇▇▇▇▇▇▇ Parties shall have made a public announcement, entered into an agreement, or filed any pleading, evidencing its intention to make Committed Advances pursuant support or that otherwise supports any transaction with respect to Section 2.1.1the reorganization or sale of any of the ▇▇▇▇▇▇▇ Parties or otherwise shall have taken any action that is materially inconsistent with the transactions contemplated by the Plan or this Plan Sponsorship Agreement or the First Lien Documents, for the purpose Second Lien Documents or the Third Lien Documents;
(ii) any plan of acquiring reorganization of ▇▇▇▇▇▇▇ shall be consummated only on terms consistent with the Plan and the First Lien Documents, the Second Lien Documents and the Third Lien Documents, and all of the conditions precedent to the confirmation and effectiveness of the Plan and to the execution and delivery by all parties intended to be signatory thereto of the First Lien Documents, the Second Lien Documents and the Third Lien Documents and to the closing of the financings, and consummation of the other transactions contemplated by the foregoing shall have been satisfied, in all material respects, in a manner satisfactory to the Plan Sponsors;
(iii) any and all documentation relating to the "ACQUISITION"Plan and the First Lien Documents, the Second Lien Documents and the Third Lien Documents, (including, without limitation, the Plan, any intercreditor agreement between the holders of the Permitted First Lien Indebtedness and the holders of the Convertible Notes, any intercreditor agreement between the holders of the Permitted First Lien Indebtedness and the holders of the Permitted Third Lien Indebtedness, any intercreditor agreement between the holders of the Convertible Notes and the holders of the Permitted Third Lien Indebtedness and the First Lien Documents, the Second Lien Documents and the Third Lien Documents themselves), and the transactions contemplated hereby and thereby and by the Plan, including, without limitation, each of the definitive documents necessary to effect the Reorganization, shall be in form and substance satisfactory to the Plan Sponsors and shall be consistent with the Plan and the exhibits attached thereto, and any and all amendments or modifications to the Plan on or after the initial filing date thereof, or to the proposed forms of the First Lien Documents, the Second Lien Documents and the Third Lien Documents approved by the Plan Sponsors, shall be in form and substance satisfactory to the Plan Sponsors;
(iv) a Real Property the cash payment obligations under (a) thatthe ▇▇▇▇▇▇▇ Industries, once acquiredInc. Hourly Employees Pension Plan and (b) the Fiber Industries, qualifies Inc. Retirement Income Plan shall be in an amount acceptable to the Plan Sponsors;
(v) the total amount of cash to be distributed on the Effective Date to the holders of Allowed General Administrative Claims (as an Unencumbered Asset defined in the Plan) (including cure and section 503(b)(9) claims) shall be no more than $12 million;
(vi) each Plan Sponsor shall have received its Applicable Percentage of the previous approval by Plan Sponsor Fee or such fee shall be paid contemporaneously with the Required Lenders pursuant issuance of the Plan Sponsor Shares and the Convertible Notes to subsection the Plan Sponsors as contemplated in Section 2(b)(ii);
(vii) the representations and warranties of each of the definition ▇▇▇▇▇▇▇ Parties contained in this Plan Sponsorship Agreement and of "Unencumbered Asset"each of the parties thereto (other than the Plan Sponsors) contained in any of the First Lien Documents, the Second Lien Documents or the Third Lien Documents that are qualified as to materiality, material adverse effect, Material Adverse Effect, or similar qualifiers, and the representation and warranty contained in Section 3(a)(xi) and (xii), shall be true and correct in all respects, on and as of the date hereof and, with respect to the ▇▇▇▇▇▇▇ Parties that are to continue in existence immediately following the Effective Date, or the successors of ▇▇▇▇▇▇▇ or new entities created pursuant to the Plan, including the Issuer (the “Surviving Entities”), and any other parties thereto (other than the Plan Sponsors), as of and after giving effect to the Closing and the Effective Date and the execution and delivery of, and consummation of the transactions contemplated by, the Plan and the First Lien Documents, the Second Lien Documents and the Third Lien Documents, with the same force and effect as though made on and as of such date, and (x) the representations and warranties of each of the ▇▇▇▇▇▇▇ Parties contained in this Plan Sponsorship Agreement and of each of the parties thereto (other than the Plan Sponsors) contained in any of the First Lien Documents, the Second Lien Documents or the Third Lien Documents that are not so qualified shall be true and correct in all material respects on and as of the date hereof and, with respect to the Surviving Entities, and any other parties thereto (other than the Plan Sponsors), as of and after giving effect to the Closing and the Effective Date and the execution and delivery of, and consummation of the transactions contemplated by, the Plan and the First Lien Documents, the Second Lien Documents and the Third Lien Documents, with the same force and effect as though made on and as of such date, (y) each of the other parties to the First Lien Documents, the Second Lien Documents and the Third Lien Documents shall have performed or complied with, in all material respects, its covenants and other agreements required to be performed or complied with under the First Lien Documents, the Second Lien Documents or the Third Lien Documents, as applicable, on or prior to the Effective Date, and (z) ▇▇▇▇▇▇▇ shall have performed or complied with, in all material respects, its covenants and other agreements required to be performed or complied with under this Plan Sponsorship Agreement and the First Lien Documents, the Second Lien Documents and the Third Lien Documents on or prior to the Effective Date and shall not be in breach of any thereof (and ▇▇▇▇▇▇▇ or Reorganized ▇▇▇▇▇▇▇ shall have delivered to each Plan Sponsor a certificate of its Chief Executive Officer or Chief Financial Officer to the effect that each of the conditions specified in this Section 4(a)(vii) is satisfied in all respects);
(viii) The First Lien Documents, the Second Lien Documents and the Third Lien Documents shall have been duly executed and delivered by, or shall by court order have become effective and binding upon, and shall be enforceable against, each party thereto and each person or entity purported to be bound thereby. The indebtedness and other obligations of the ▇▇▇▇▇▇▇ Parties under the Second Lien Documents shall be secured by valid and perfected liens on all of the assets of the ▇▇▇▇▇▇▇ Parties pursuant to and in accordance with the Second Lien Documents, having the priority contemplated in the preamble to this Plan Sponsorship Agreement.;
(ix) the organizational documents of the ▇▇▇▇▇▇▇ Parties shall be satisfactory in form and substance to the Sponsors, and shall provide for an initial board of directors comprised of 7 members, including four designated by holders of the Convertible Notes, one designated by the holders of First Lien Term Loan pre-petition indebtedness of ▇▇▇▇▇▇▇, one designated by the holders of the Second Lien Term Loan pre-petition indebtedness of ▇▇▇▇▇▇▇, and the seventh to be the CEO of the Issuer, and that thereafter, (1) five members of the board of directors shall be elected by the vote of the holders of a majority of the voting power of the outstanding shares of New Common Stock and holders of the outstanding Convertible Notes and Permitted Third Lien Indebtedness (with holders of the Convertible Notes and the Permitted Third Lien Indebtedness voting on a “as converted” fully diluted basis), (2) for so long as at least $10,000,000 in aggregate principal amount of Permitted Third Lien Indebtedness remains outstanding, or the aggregate principal amount of the Permitted Third Lien Indebtedness is not less than 50% of the aggregate of the principal amount of the Convertible Notes and the Permitted Third Lien Indebtedness, one member of the board of directors shall be elected by the vote of holders of Permitted Third Lien Indebtedness representing at least a majority of the aggregate principal amount of the outstanding Permitted Third Lien Indebtedness and (3) one member of the board of the directors shall be the then-CEO of the Issuer (except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Issuer); (x) the holders of New Common Stock, Convertible Notes and Permitted Third Lien Indebtedness shall enter into a registration rights agreement which shall provide that following an initial public offering by the Issuer, any such parties holding Common Stock, Convertible Notes and Permitted Third Lien Indebtedness representing in the aggregate at least 10% in voting power of the Common Stock, Convertible Notes and Permitted Third Lien Indebtedness, voting together as a single class on an as-converted basis, shall have demand and piggyback registration rights with respect to shares of New Common Stock of the Issuer owned by such holder; (y) the Convertible Notes to be purchased by the Plan Sponsors pursuant to its Plan Sponsor Commitment shall be issued and distributed in accordance with the Plan and this Plan Sponsorship Agreement pursuant to an exemption from registration under the Securities Act and any state or local law requiring registration for the offer or sale of a security, and (z) other than the Plan Sponsors and any entity that is an underwriter as defined in subsection (b) of Section 1145 of the Bankruptcy Code, subject to the approval of the Bankruptcy Court in the Confirmation Order, the issuance of the Convertible Notes shall qualify for an exemption from registration under the Securities Act and any state or local law requiring registration for the offer or sale of a security;
(x) no provision of any applicable law or regulation and no judgment, injunction, decree, or other legal restraint shall prohibit the consummation of the Plan or the transactions contemplated thereby, or the entry into by the parties thereto of this Plan Sponsorship Agreement, the First Lien Documents, the Second Lien Documents and the Third Lien Documents and the consummation of the transactions contemplated thereby; and
(xi) In the case of each Plan Sponsor, the other Plan Sponsor shall not have defaulted in payment of its Applicable Portion of the Plan Infusion.
(b) The obligations of each of the ▇▇▇▇▇▇▇ Parties to consummate the transactions contemplated herein shall be subject to the satisfaction (or waiver by ▇▇▇▇▇▇▇) of each of the following conditions:
(i) the Confirmation Order shall have been entered by the Bankruptcy Court and (y) the conditions precedent to the effectiveness of the Plan shall have been satisfied or waived in accordance with the Plan;
(ii) the representations and warranties of the Plan Sponsors contained in this Plan Sponsorship Agreement that are qualified as to materiality, material adverse effect, or similar qualifiers, and the representations and warranties of the Plan Sponsors contained in Section 3(b)(v), (vi), and (b) without inclusion of which in the Unencumbered Pool, the Borrower would not be in compliance with Section 7.4 giving effect to such Advances, if, in addition to the other conditions set forth in this Agreement (including Section 4.2vii), all of the following conditions shall be satisfied as of the Funding Date:
4.3.1.1. The Borrower shall be true and correct in compliance with Section 7.4 giving effect to the Acquisition all respects, on and the funding of the Committed Advances;
4.3.1.2. The Borrower shall have previously delivered to the Agent and the Lenders the information required to be delivered to them under the definition of "Unencumbered Asset" as to such Real Property, and such Real Property shall have been approved as eligible for inclusion in the Unencumbered Pool as contemplated by clause (ii) of such definition;
4.3.1.3. The Borrower shall have delivered to the Agent a separate Notice of Borrowing with respect to that portion of such Committed Advances that could not be made in compliance with Section 7.4 without giving effect to the inclusion of such Real Property in the Unencumbered Pool (such portion being the "ACQUISITION ADVANCES");
4.3.1.4. The Borrower shall have delivered to the Agent concurrently with its Notice of Borrowing referred to in Section 4.3.1.3 above, a certificate in the form attached hereto as Exhibit B-5, duly executed by a Senior Officer of the Borrower, describing the Real Property to be acquired, designating such Real Property as an Unencumbered Asset effective upon consummation of the Acquisition, and setting forth the Unencumbered Asset Value of such Real Property as if it were an Unencumbered Asset as of the date hereof and the Effective Date, with the same force and effect as though made on and as of such Notice date (except to the extent that any such representation or warranty is made as of Borrowing (the "PRO FORMA UNENCUMBERED ASSET VALUE");
4.3.1.5. All statements set forth a specified date, in the certificate referred to in 4.3.1.4 above which case such representation or warranty shall be true and correct as of such specified date), and (y) the representations and warranties of the Plan Sponsor contained in this Plan Sponsorship Agreement that are not so qualified shall be true and correct in all material respects on and as of the date thereof hereof and the Funding Effective Date;
4.3.1.6. The Borrower , with the same force and effect as though made on and as of such date (except to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall be true and correct in all material respects as of such specified date), and (z) the Plan Sponsors shall have provided performed or complied with, in all material respects, their covenants required to be performed or complied with under this Plan Sponsorship Agreement on or prior to the Agent Effective Date (and the Lenders Plan Sponsors shall each have delivered to ▇▇▇▇▇▇▇ a certificate to the effect that each of the conditions specified in this Section 4(b)(ii) is satisfied in all respects with respect to such information as may be reasonably requested Plan Sponsor); and
(iii) no provision of any applicable law or regulation and no judgment, injunction, decree, or other legal restraint shall prohibit the consummation of the Plan or the transactions contemplated thereby, or the entry into by the Agent parties thereto of this Plan Sponsorship Agreement, the First Lien Documents, the Second Lien Documents and the Lenders in order to verify Third Lien Documents and the terms, timing and method of payment specified in the contract between a Borrower Party, as purchaser consummation of the Real Property to be acquired, and the seller of such property (the "ACQUISITION AGREEMENT"), or to determine compliance with this Section 4.3transactions contemplated thereby.; and
Appears in 1 contract
Certain Conditions. The Borrower may request, It will be a condition of Merck’s rights hereunder to have Registrable Securities owned by it registered that: (i) Merck will reasonably cooperate with Seagen by supplying information and executing documents relating to Merck or the Lenders shall be required to make Committed Advances pursuant to Section 2.1.1, for the purpose securities of acquiring (the "ACQUISITION") a Real Property (a) that, once acquired, qualifies as an Unencumbered Asset (including the previous approval Seagen owned by the Required Lenders pursuant to subsection (vii) of the definition of "Unencumbered Asset"), Merck in connection with such registration; and (b) without inclusion of which in the Unencumbered Pool, the Borrower would not be in compliance with Section 7.4 giving effect to such Advances, if, in addition to the other conditions set forth in this Agreement (including Section 4.2), all of the following conditions shall be satisfied as of the Funding Date:
4.3.1.1. The Borrower shall be in compliance with Section 7.4 giving effect to the Acquisition and the funding of the Committed Advances;
4.3.1.2. The Borrower shall have previously delivered to the Agent and the Lenders the information required to be delivered to them under the definition of "Unencumbered Asset" as to such Real Property, and such Real Property shall have been approved as eligible for inclusion in the Unencumbered Pool as contemplated by clause (ii) Merck will enter into such undertakings and take such other actions relating to the conduct of the proposed offering that Seagen may request as being necessary to ensure compliance with federal and state securities laws and the securities laws of any applicable jurisdiction and the rules or other requirements of the applicable exchange. In the event of any registration under the Securities Act of any Registrable Securities pursuant to this Section 8, Seagen will indemnify and hold harmless Merck, each of its directors, its officers, and its equity holders against such losses, claims, damages or liabilities (including reimbursement for reasonable and documented legal and other expenses) to which Merck or any such director, officer or equity holder may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities arise out of or are based upon a Violation; provided, however, that the indemnity agreement contained in this Section 8.3 will not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without Seagen’s consent, which consent will not be unreasonably withheld, nor will Seagen be liable in any such case for any such loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation that occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any of such definition;
4.3.1.3. The Borrower shall have delivered indemnified parties; and provided, further that Merck will indemnify and hold harmless Seagen, each of its directors, its officers, and each person, if any, who controls Seagen within the meaning of the Securities Act, and any underwriter, and any other third party, as applicable, selling securities under such registration statement, against such losses, claims, damages or liabilities (including reimbursement for reasonable and documented legal and other expenses) to which Seagen or any such director, officer, controlling person, underwriter or other third party who may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities arise out of or are based upon a Merck Violation, in each case, to the Agent a separate Notice of Borrowing extent (and only to the extent) that such Merck Violation occurs in reliance upon and in conformity with respect to that portion written information furnished expressly for use in connection with such registration by any of such Committed Advances indemnifying parties, provided, however, that could the indemnity agreement contained in this Section 8.3 will not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without Merck’s consent, which consent will not be made unreasonably withheld; provided, further, that in compliance with no event shall the obligations of Merck in this Section 7.4 without giving effect 8.3 exceed the net proceeds received by it from the sale of its Registrable Securities related to the inclusion of such Real Property matter in the Unencumbered Pool (such portion being the "ACQUISITION ADVANCES");
4.3.1.4. The Borrower shall have delivered to the Agent concurrently with its Notice of Borrowing referred to in Section 4.3.1.3 above, a certificate in the form attached hereto as Exhibit B-5, duly executed by a Senior Officer of the Borrower, describing the Real Property to be acquired, designating such Real Property as an Unencumbered Asset effective upon consummation of the Acquisition, and setting forth the Unencumbered Asset Value of such Real Property as if it were an Unencumbered Asset as of the date of such Notice of Borrowing (the "PRO FORMA UNENCUMBERED ASSET VALUE");
4.3.1.5. All statements set forth in the certificate referred to in 4.3.1.4 above shall be true and correct as of the date thereof and the Funding Date;
4.3.1.6. The Borrower shall have provided to the Agent and the Lenders such information as may be reasonably requested by the Agent and the Lenders in order to verify the terms, timing and method of payment specified in the contract between a Borrower Party, as purchaser of the Real Property to be acquired, and the seller of such property (the "ACQUISITION AGREEMENT"), which losses or to determine compliance with this Section 4.3damages are sought.; and
Appears in 1 contract
Certain Conditions. The Borrower may requestNotwithstanding anything to the contrary contained in this Agreement, and the Lenders Company shall not be required entitled to make Committed Advances an Adverse Recommendation Change pursuant to Section 2.1.1, for 5.02(f) or Section 5.02(g) or terminate this Agreement pursuant to Section 8.01(f) unless (x) the purpose of acquiring Company shall have provided to Parent five Business Days’ prior written notice (the "ACQUISITION") a Real Property “Match Right Notice”), advising Parent that the Company intends to take such action (a) thatand specifying, once acquiredin reasonable detail, qualifies the reasons for such action and the material terms and conditions of any such Superior Proposal or details of such Intervening Event, as an Unencumbered Asset (including the previous approval by the Required Lenders pursuant to subsection (vii) of the definition of "Unencumbered Asset"applicable), and (by):
(i) without inclusion of which during such five Business Day period, if requested by Parent in the Unencumbered Poolgood faith, the Borrower Company and its Representatives shall have engaged in good faith negotiations with Parent regarding changes to the terms of this Agreement intended by Parent so that an Adverse Recommendation Change would not no longer be necessary or to cause such Takeover Proposal to no longer constitute a Superior Proposal, as applicable; and
(ii) the Company Board shall have considered in compliance good faith any adjustments to this Agreement (including a change to the price terms hereof) and any other agreements that may be proposed in writing by Parent (the “Proposed Changed Terms”) and shall have determined in good faith (after consultation with Section 7.4 its outside legal counsel and financial advisors) that, after giving effect to such AdvancesProposed Changed Terms, ifthe failure to make the Adverse Recommendation Change or to terminate this Agreement pursuant to Section 8.01(f), as applicable, would be inconsistent with the fiduciary obligations of the Company Board under applicable Law. For the avoidance of doubt, any (1) material changes in the changes, effects, events, occurrences or facts relating to an Intervening Event, (2) material revisions to the terms of a Superior Proposal or (3) material revisions to a Takeover Proposal that the Company Board had determined no longer constitutes a Superior Proposal, shall constitute a new Intervening Event or Takeover Proposal, as applicable, and shall in each case require the Company to deliver to Parent a new Match Right Notice; provided that, in addition to the other conditions set forth such event, each reference in this Agreement (including Section 4.2), all of 5.02(h) to a five Business Day period or the following conditions fifth Business Day shall be satisfied as of the Funding Date:
4.3.1.1. The Borrower shall be in compliance with Section 7.4 giving effect to the Acquisition and the funding of the Committed Advances;
4.3.1.2. The Borrower shall have previously delivered to the Agent and the Lenders the information required deemed to be delivered to them under three Business Days or the definition of "Unencumbered Asset" as to such Real Propertythird Business Day, and such Real Property shall have been approved as eligible for inclusion in the Unencumbered Pool as contemplated by clause (ii) of such definition;
4.3.1.3. The Borrower shall have delivered to the Agent a separate Notice of Borrowing with respect to that portion of such Committed Advances that could not be made in compliance with Section 7.4 without giving effect to the inclusion of such Real Property in the Unencumbered Pool (such portion being the "ACQUISITION ADVANCES");
4.3.1.4. The Borrower shall have delivered to the Agent concurrently with its Notice of Borrowing referred to in Section 4.3.1.3 above, a certificate in the form attached hereto as Exhibit B-5, duly executed by a Senior Officer of the Borrower, describing the Real Property to be acquired, designating such Real Property as an Unencumbered Asset effective upon consummation of the Acquisition, and setting forth the Unencumbered Asset Value of such Real Property as if it were an Unencumbered Asset as of the date of such Notice of Borrowing (the "PRO FORMA UNENCUMBERED ASSET VALUE");
4.3.1.5. All statements set forth in the certificate referred to in 4.3.1.4 above shall be true and correct as of the date thereof and the Funding Date;
4.3.1.6. The Borrower shall have provided to the Agent and the Lenders such information as may be reasonably requested by the Agent and the Lenders in order to verify the terms, timing and method of payment specified in the contract between a Borrower Party, as purchaser of the Real Property to be acquired, and the seller of such property (the "ACQUISITION AGREEMENT"), or to determine compliance with this Section 4.3respectively.; and
Appears in 1 contract
Certain Conditions. The Borrower may requestNotwithstanding anything to the contrary contained in this Agreement, and the Lenders Company shall not be required entitled to make Committed Advances an Adverse Recommendation Change pursuant to Section 2.1.1, for 5.02(f) and Section 5.02(g) or terminate this Agreement pursuant to Section 8.01(f) unless:
(i) the purpose of acquiring Company shall have provided to Parent prior written notice at least four business days in advance (the "ACQUISITION"“Match Right Period” and, such notice, the “Match Right Notice”), advising Parent that the Company intends to take such action (and specifying, in reasonable detail, the reasons for such action and the material terms and conditions of any such Superior Proposal or details of such Intervening Event, as applicable); and
(ii) during such Match Right Period, if requested by Parent in good faith, the Company and its Representatives shall have engaged in good faith negotiations with Parent regarding changes to the terms of this Agreement intended by Parent so that an Adverse Recommendation Change would no longer be necessary or to cause such Takeover Proposal to no longer constitute a Real Property Superior Proposal, as applicable; and
(aiii) the Company Board shall have considered any adjustments to this Agreement (including a change to the price terms hereof) and any other agreements that may be proposed in writing by Parent (the “Proposed Changed Terms”) no later than 11:59 p.m., New York City time, on the last business day of the Match Right Period and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that, once acquired, qualifies as an Unencumbered Asset (including the previous approval by the Required Lenders pursuant to subsection (vii) of the definition of "Unencumbered Asset"), and (b) without inclusion of which in the Unencumbered Pool, the Borrower would not be in compliance with Section 7.4 after giving effect to such AdvancesProposed Changed Terms, ifthe failure to make the Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.01(f), as applicable, would be reasonably likely to be inconsistent with its fiduciary obligations of the Company Board under applicable Law. For the avoidance of doubt, any (1) material changes in the changes, effects, events, occurrences or facts relating to an Intervening Event, (2) material revisions to the terms of a Superior Proposal or (3) material revisions to a Takeover Proposal that the Company Board had determined no longer constitutes a Superior Proposal, shall constitute a new Intervening Event or Takeover Proposal, as applicable, and shall in each case require the Company to deliver to Parent a new Match Right Notice; provided that, in addition such event, each reference in this Section 5.02(h) to the other conditions set forth in this Agreement (including Section 4.2), all of the following conditions Match Right Period shall be satisfied as of the Funding Date:
4.3.1.1. The Borrower shall be in compliance with Section 7.4 giving effect to the Acquisition and the funding of the Committed Advances;
4.3.1.2. The Borrower shall have previously delivered to the Agent and the Lenders the information required deemed to be delivered to them under the definition of "Unencumbered Asset" as to such Real Property, and such Real Property shall have been approved as eligible for inclusion in the Unencumbered Pool as contemplated by clause (ii) of such definition;
4.3.1.3. The Borrower shall have delivered to the Agent a separate Notice of Borrowing with respect to that portion of such Committed Advances that could not be made in compliance with Section 7.4 without giving effect to the inclusion of such Real Property in the Unencumbered Pool (such portion being the "ACQUISITION ADVANCES");
4.3.1.4. The Borrower shall have delivered to the Agent concurrently with its Notice of Borrowing referred to in Section 4.3.1.3 above, a certificate in the form attached hereto as Exhibit B-5, duly executed by a Senior Officer of the Borrower, describing the Real Property to be acquired, designating such Real Property as an Unencumbered Asset effective upon consummation of the Acquisition, and setting forth the Unencumbered Asset Value of such Real Property as if it were an Unencumbered Asset as of the date of such Notice of Borrowing (the "PRO FORMA UNENCUMBERED ASSET VALUE");
4.3.1.5. All statements set forth in the certificate referred to in 4.3.1.4 above shall be true and correct as of the date thereof and the Funding Date;
4.3.1.6. The Borrower shall have provided to the Agent and the Lenders such information as may be reasonably requested by the Agent and the Lenders in order to verify the terms, timing and method of payment specified in the contract between a Borrower Party, as purchaser of the Real Property to be acquired, and the seller of such property (the "ACQUISITION AGREEMENT"), or to determine compliance with this Section 4.3two business day period.; and
Appears in 1 contract
Certain Conditions. Initial Conditions: The Borrower may request, and availability of the Lenders Revolving Facility shall be required to make Committed Advances pursuant to Section 2.1.1conditioned upon satisfaction of, for among other things, the purpose of acquiring following conditions precedent (the "ACQUISITION"date upon which all such conditions precedent shall be satisfied, the “Closing Date”) a Real Property on or before [ ], 2020:
(a) that, once acquired, qualifies as an Unencumbered Asset (including the previous approval by the Required Lenders pursuant to subsection (vii) of the definition of "Unencumbered Asset"), and (b) without inclusion of which in the Unencumbered Pool, the Borrower would not be in compliance with Section 7.4 giving effect to such Advances, if, in addition to the other conditions set forth in this Agreement (including Section 4.2), all of the following conditions shall be satisfied as of the Funding Date:
4.3.1.1. The Borrower shall be in compliance with Section 7.4 giving effect to the Acquisition and the funding of the Committed Advances;
4.3.1.2. The Borrower shall have previously executed and delivered satisfactory definitive financing documentation with respect to the Revolving Facility, including a credit agreement (the “Credit Agreement”), security documents and other legal documentation (collectively, together with the Credit Agreement, the “Loan Documents”) mutually satisfactory to the Borrower and the Lenders.
(b) The Lenders, the Lead Arranger and the Administrative Agent shall have received all fees required to be paid and all expenses for which invoices have been presented, on or before the Closing Date.
(c) All governmental and third party approvals necessary in connection with the financing contemplated hereby and the continuing operations of the Borrower and its subsidiaries (including shareholder approvals, if any) shall have been obtained on satisfactory terms and shall be in full force and effect.
(d) The terms of (i) the Borrower’s chapter 11 plan of reorganization (the “Plan of Reorganization”) and (ii) all orders of the Court (as defined in the DIP Credit Agreement) approving the Plan of Reorganization, the Revolving Facility, the Commitment Letter and the Fee Letter, or affecting the rights, remedies and obligations of the Administrative Agent and the Lenders hereunder and thereunder, shall be in form and substance acceptable to the information required to be delivered to them under the definition Lenders in all material respects.
(e) The Plan of "Unencumbered Asset" as to such Real Property, and such Real Property Reorganization shall have been approved as eligible for inclusion confirmed by a final order entered by the Court (the “Confirmation Order”) in form and substance acceptable to the Unencumbered Pool as contemplated Lenders in all material respects, and which has not been stayed by clause (ii) of the Court or by any other court having jurisdiction to issue any such definition;
4.3.1.3stay. The Borrower Confirmation Order shall have delivered been entered upon proper notice to all parties to be bound by the Agent a separate Notice Plan of Borrowing Reorganization, all as may be required by the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, order of the Court, and any applicable local bankruptcy rules. Moreover, (i) the time to appeal the Confirmation Order or to seek review, rehearing or certiorari with respect to that portion of such Committed Advances that could not be made in compliance with Section 7.4 without giving effect to the inclusion of such Real Property in the Unencumbered Pool (such portion being the "ACQUISITION ADVANCES");
4.3.1.4. The Borrower shall Confirmation Order must have delivered to the Agent concurrently with its Notice of Borrowing referred to in Section 4.3.1.3 above, a certificate in the form attached hereto as Exhibit B-5, duly executed by a Senior Officer of the Borrower, describing the Real Property to be acquired, designating such Real Property as an Unencumbered Asset effective upon consummation of the Acquisition, and setting forth the Unencumbered Asset Value of such Real Property as if it were an Unencumbered Asset as of the date of such Notice of Borrowing (the "PRO FORMA UNENCUMBERED ASSET VALUE");
4.3.1.5. All statements set forth in the certificate referred to in 4.3.1.4 above shall be true and correct as of the date thereof and the Funding Date;
4.3.1.6. The Borrower shall have provided to the Agent and the Lenders such information as may be reasonably requested by the Agent and the Lenders in order to verify the terms, timing and method of payment specified in the contract between a Borrower Party, as purchaser of the Real Property to be acquired, and the seller of such property (the "ACQUISITION AGREEMENT"), or to determine compliance with this Section 4.3.; andexpired,
Appears in 1 contract
Sources: Commitment Letter
Certain Conditions. (a) The Borrower may requestobligation of Elan and EIS to consummate the transaction contemplated by the Definitive Agreements shall be subject to conditions precedent customary for transactions of such type, including, but not limited to, the following: (1)
(a) Ligand shall have executed and delivered and issued to EIS, the applicable Purchase Agreement, and such other reasonable and customary documents and instruments as provided therein or as EIS may otherwise reasonably request with respect to the Lenders transactions contemplated by Exhibits B and C hereto, (b) Ligand shall be required have executed and delivered the Tenth Addendum to make Committed Advances pursuant to Section 2.1.1the Amended Registration Rights Agreement, for dated as of June 24, 1994, among Ligand and the purpose of acquiring persons party thereto (the "ACQUISITION") a Real Property (a) that, once acquired, qualifies as an Unencumbered Asset (including the previous approval by the Required Lenders pursuant to subsection (vii) of the definition of "Unencumbered AssetRegistration Rights Agreement"), providing for the registration rights set forth in Exhibit B hereto and (c) with respect to the transactions contemplated by the Additional Purchase Agreement and the License Agreement, Ligand shall have executed and delivered the License Agreement, and such other reasonable and customary documents and instruments as provided therein or as Elan may otherwise reasonably request in respect of the transactions contemplated by Exhibit A hereto, which, in the case of each of clauses (a), (b) without inclusion and (c), when duly executed and delivered by Ligand shall be valid, binding and enforceable and in full force and effect, subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and to general principles of which equity, and there shall be no breach or default by Ligand thereunder; (2) there shall not have occurred from the date hereof through and including the Initial Closing Date (as defined in Exhibit B) or the Closing Date, as the case may be, any material adverse change or event that could reasonably be expected to result in a material adverse change in the Unencumbered Poolbusiness, the Borrower would not be in compliance with Section 7.4 giving effect to such Advancesassets, if, in addition to the other conditions set forth in this Agreement liabilities (including Section 4.2contingent or otherwise), all operations, condition (financial or otherwise), solvency, properties, prospects or material agreements of the following conditions shall be satisfied Ligand and its subsidiaries, taken as of the Funding Date:
4.3.1.1. The Borrower shall be in compliance with Section 7.4 giving effect to the Acquisition and the funding of the Committed Advances;
4.3.1.2. The Borrower shall have previously delivered to the Agent and the Lenders the information required to be delivered to them under the definition of a whole (a "Unencumbered Asset" as to such Real Property, and such Real Property shall have been approved as eligible for inclusion in the Unencumbered Pool as contemplated by clause (ii) of such definition;
4.3.1.3. The Borrower shall have delivered to the Agent a separate Notice of Borrowing with respect to that portion of such Committed Advances that could not be made in compliance with Section 7.4 without giving effect to the inclusion of such Real Property in the Unencumbered Pool (such portion being the "ACQUISITION ADVANCESMaterial Adverse Change");
4.3.1.4. The Borrower ; (3) Ligand shall not have delivered to the Agent concurrently with breached or defaulted in any of its Notice of Borrowing referred to in Section 4.3.1.3 above, a certificate in the form attached hereto as Exhibit B-5, duly executed by a Senior Officer of the Borrower, describing the Real Property to be acquired, designating such Real Property as an Unencumbered Asset effective upon consummation of the Acquisition, material obligations hereunder and setting forth the Unencumbered Asset Value of such Real Property as if it were an Unencumbered Asset as of the date of such Notice of Borrowing (the "PRO FORMA UNENCUMBERED ASSET VALUE");
4.3.1.5. All statements set forth in the certificate referred to in 4.3.1.4 above thereunder and its representations herein and therein shall be true and correct in all material respects, as if made on and as of the date Initial Closing Date or the Closing Date, as the case may be; (4) no consent, approval or filing (with any governmental authority or otherwise) on the part of Ligand shall be required for the execution, delivery or performance of the Definitive Agreements or the Registration Rights Agreement, or, if required, such approval shall have been obtained and any applicable waiting periods in respect thereof shall have elapsed; and (5) with respect to the transactions contemplated by the Additional Purchase Agreement and the Funding Date;
4.3.1.6. The Borrower shall have provided to the Agent License Agreement, that certain Preferred Share Rights Agreement, dated as of September 13, 1996, between Ligand and the Lenders such information as may be reasonably requested by the Agent and the Lenders in order to verify the termsWell▇ ▇▇▇go Bank, timing and method of payment specified in the contract between a Borrower PartyN.A., as purchaser of the Real Property amended from time to be acquired, and the seller of such property time (the "ACQUISITION AGREEMENTRights Agreement"), shall have been amended in form and substance reasonably satisfactory to Elan, so that the transactions contemplated by the Definitive Agreements will not require the issuance of any Rights (as defined in the Rights Agreement) thereunder.
(b) The obligation of Ligand to consummate the transaction contemplated by the Definitive Agreements shall be subject to conditions precedent customary for transactions of such type, including, but not limited to, the following: (1)
(a) EIS shall have executed and delivered to Ligand the applicable Purchase Agreement, and such other reasonable and customary documents and instruments as provided therein or as Ligand may otherwise reasonably request with respect to determine compliance the transactions contemplated by Exhibits B and C hereto, (b) EIS shall have executed and delivered the Registration Rights Agreement and (c) with respect to the transactions contemplated by the Additional Purchase Agreement and the License Agreement, Elan shall have executed and delivered the License Agreement, and such other reasonable and customary documents and instruments as provided therein or as Ligand may otherwise reasonably request in respect of the transactions contemplated by Exhibit A hereto, which, in the case of each of clauses (a), (b) and (c), when duly executed and delivered by Elan or EIS, as the case may be, shall be valid, binding and enforceable and in full force and effect, subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and to general principles of equity, and there shall be no breach or default by Elan or EIS, as the case may be, thereunder; (2) neither Elan nor EIS shall have breached or defaulted in any of its material obligations hereunder and thereunder and its representations herein and therein shall be true and correct in all material respects, as if made on and as of the Initial Closing Date or the Closing Date, as the case may be; and (3) no consent, approval or filing (with any governmental authority or otherwise) on the part of Elan or EIS shall be required for the execution, delivery or performance of the Definitive Agreements, or, if required, such approval shall have been obtained and any applicable waiting periods in respect thereof shall have elapsed.
(c) In the event that the Definitive Agreements shall not have been executed and delivered on or prior to the later of (i) October 31, 1998 and (ii) the expiration of the waiting period under the Hart-▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇itrust Improvements Act of 1976, as amended (including as a result of the material breach or default hereunder by either EIS or Elan, on the one hand, or Ligand, on the other hand), the non-defaulting party or parties shall have the right to terminate this Section 4.3Letter of Intent by written notice to the other(s), whereupon the transactions contemplated hereby shall be canceled and of no further force and effect; provided that, notwithstanding the termination of this Letter of Intent, each party shall remain liable to the other for or in respect of any breach or default which shall have occurred prior to such date.; and
Appears in 1 contract
Sources: License and Financing Transaction (Ligand Pharmaceuticals Inc)
Certain Conditions. The Borrower may request, and the Lenders shall be required to make Committed Advances pursuant to Section 2.1.1, for the purpose of acquiring (the "ACQUISITION") a Real Property (a) thatThe following shall be conditions to Elan's and EIS's obligation to execute and deliver the Definitive Documents and consummate the transactions contemplated hereby, once acquired, qualifies as an Unencumbered Asset (including the previous approval funding of all or any portion of the indebtedness evidenced by the Required Lenders pursuant to subsection (vii) Note and the entering into of the definition License Agreement (such transactions, the "Closing"; the date thereof, the "Closing Date"): (1) the Note, Note Purchase Agreement, License Agreement and other reasonable and customary documents and instruments (which are in customary form otherwise reasonably satisfactory to Elan and EIS) (collectively, the "Definitive Documents") shall have been executed and delivered by each of "Unencumbered Asset")Cytogen and Targon, as applicable, and (b) without inclusion of which in the Unencumbered Pool, the Borrower would not be in compliance with Section 7.4 giving effect to such Advances, if, in addition to the other conditions set forth in this Agreement (including Section 4.2), all of the following conditions shall be satisfied as of the Funding Date:
4.3.1.1. The Borrower documents shall be in compliance with Section 7.4 giving full force and effect and there shall be no breach or default by Cytogen or Targon thereunder, (2) Cytogen's legal counsel (who may be internal counsel) shall have provided an opinion to Elan and EIS, in customary form and containing customary exceptions, to the Acquisition and the funding effect of the Committed Advances;
4.3.1.2. The Borrower shall have previously delivered items referred to the Agent and the Lenders the information required to be delivered to them under the definition of "Unencumbered Asset" as to such Real Propertyin clauses (i), and such Real Property shall have been approved as eligible for inclusion in the Unencumbered Pool as contemplated by clause (ii) and (iv) of such definition;
4.3.1.3. The Borrower Section 4(a) below (as to Cytogen only), (3) there shall not have occurred from the date hereof through and including the Closing Date any material adverse change in either of Cytogen's or Targon's business or condition (financial or otherwise), (4) neither Cytogen nor Targon shall have delivered to the Agent a separate Notice breached or defaulted in any of Borrowing with respect to that portion of such Committed Advances that could not be made in compliance with Section 7.4 without giving effect to the inclusion of such Real Property in the Unencumbered Pool (such portion being the "ACQUISITION ADVANCES");
4.3.1.4. The Borrower shall have delivered to the Agent concurrently with its Notice of Borrowing referred to in Section 4.3.1.3 above, a certificate in the form attached hereto as Exhibit B-5, duly executed by a Senior Officer of the Borrower, describing the Real Property to be acquired, designating such Real Property as an Unencumbered Asset effective upon consummation of the Acquisition, material obligations hereunder and setting forth the Unencumbered Asset Value of such Real Property as if it were an Unencumbered Asset as of the date of such Notice of Borrowing (the "PRO FORMA UNENCUMBERED ASSET VALUE");
4.3.1.5. All statements set forth in the certificate referred to in 4.3.1.4 above its representations herein shall be true and correct in all material respects, as if made on each such date, (5) no consent, approval or filing (with any governmental authority or otherwise) shall be required, and all such third-party consents shall have been obtained and applicable waiting periods shall have elapsed and (6) the Closing shall have occurred on or prior to July 17, 1997.
(b) The following shall be conditions to Cytogen's and Targon's obligation to execute and deliver the Definitive Documents (which are otherwise reasonably satisfactory to each) and consummate the transactions contemplated hereby, including the payment of any amounts under the License Agreement: (1) the Definitive Documents shall have been executed and delivered by Elan and EIS, as applicable, and such documents shall be in full force and effect and there shall be no breach or default by such parties thereunder, (2) Elan and EIS shall not have breached or defaulted in any of their material obligations hereunder and their representations herein shall be true and correct in all material respects, as if made on each such date, and (3) no consent, approval or filing (with any governmental authority or otherwise) shall be required, and all such third-party consents shall have been obtained and applicable waiting periods shall have elapsed and (4) the Closing shall have occurred on or prior to July 17, 1997.
(c) In the event that the Closing shall not have occurred on or prior to July 17, 1997 (other than as a result of a party's material breach or default hereunder, in which case, the other party, but not such breaching party, shall have the right not to consummate such transactions; it being understood that for purposes of this Section 3(c), Cytogen and Targon shall be considered one party and Elan and EIS shall be considered the other party), the transactions contemplated hereby shall be canceled and of no further force and effect; provided, that each party shall remain liable to the other for or in respect of any breach or default which shall have occurred prior to such date.
(d) The conditions set forth in Sections 3(a) above (other than clause (6) thereof) and 3(b) above (other than clause (4) thereof) shall constitute conditions to the closing of the date thereof Medipad License Agreement and the Funding Date;
4.3.1.6. The Borrower shall have provided to the Agent and the Lenders such information as may be reasonably requested by the Agent and the Lenders in order to verify the terms, timing and method of payment specified in the contract between a Borrower Party, as purchaser of the Real Property to be acquired, and the seller of such property (the "ACQUISITION AGREEMENT"), or to determine compliance with this Section 4.3related transactions.; and
Appears in 1 contract
Sources: Loan Agreement (Elan Corp PLC)