Conditions of Closing. 8.1. Required Deliveries on or before the Closing Date. On or before the Closing Date which shall occur on or before September 1, 2005, the Agent shall receive the following: (a) the Intercreditor Agreement, in form and substance satisfactory to the Agent, duly executed, and in full force and effect; (b) a certificate from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents; (c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of each Borrower Party; (d) a certificate of status with respect to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction; (e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions; (f) an opinion of counsel for the Borrower Parties in form and substance satisfactory to the Agent; (g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect; (h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements; (i) the Third Amendment to the First Lien Credit Agreement shall have been executed; (j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and (k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the Agent.
Appears in 3 contracts
Sources: Support Agreement (Salton Inc), Support Agreement (Salton Inc), Support Agreement (Salton Inc)
Conditions of Closing. 8.1. Required Deliveries The Purchaser acknowledges and agrees that the Partnership is relying on or before the truth of the representations and warranties of the Purchaser contained in this Subscription Agreement as of the date of this Subscription Agreement, and as of the Closing Date. On or before Time as if made at and as of the Closing Date which shall occur on or before September 1Time, 2005, and the Agent shall receive fulfillment of the followingfollowing additional conditions prior to the Closing Time:
(a) the Intercreditor Purchaser having delivered a properly completed and executed copy of this Subscription Agreement, in form and substance satisfactory including all items required to be completed as set out above, directly to the AgentAdministrator or through a registered distributor, duly executedor their approved dealer for delivery to the Administrator at the address below, and having made payment of the Subscription Amount by a certified cheque, bank draft or, in full force and effect;
the discretion of the Administrator, wire transferred funds, or by way of funds transfer via Fundserv from the Purchaser's brokerage account at an approved dealer, all in accordance with the instructions on the cover pages of this Subscription Agreement: (b) a certificate from if the Secretary Purchaser is:
a. an “accredited investor” under Section 1.1 of each Borrower Party NI 45-106, and is relying on the “accredited investor” exemption under Section 2.3 of NI 45-106, the Purchaser having properly completed, signed and delivered (i) attesting Schedule “A” (the “Accredited Investor Schedule”), and (ii) Exhibit “I” if subscribing under categories (j), (k) or (l) of the Accredited Investor Schedule;
b. resident in Alberta, Saskatchewan, or Manitoba, and has received a copy of the Offering Memorandum of the Partnership prior to its execution of this Subscription Agreement, the Purchaser having properly completed, signed and delivered Schedule “B”, including all Exhibits thereto (the “Offering Memorandum Schedule”);
c. resident in Manitoba, and is not an eligible investor, the acquisition cost to the resolutions of such Borrower Party's board of directors authorizing its execution, deliveryPurchaser does not exceed $10,000;
d. resident in British Columbia, and performance has received a copy of all Loan Documents required the Offering Memorandum of the Partnership prior to its execution of this Subscription Agreement, the Purchaser having properly completed, signed and delivered Exhibit “III” (Risk Acknowledgement Form) of Schedule “B” (Offering Memorandum Schedule); or
e. relying on the “minimum amount investment” exemption under Section 2.10 of NI 45-106, then no Schedules to this Subscription Agreement need to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of each Borrower Party;
(d) a certificate of status with respect to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the Agent.
Appears in 2 contracts
Sources: Subscription Agreement, Subscription Agreement
Conditions of Closing. 8.1. Required Deliveries The Subscriber on its own behalf and, if applicable, on behalf of others for whom it is acting hereunder, acknowledges and agrees that the obligations of the Corporation hereunder are conditional on the accuracy of the representations and warranties of the Subscriber contained in this Subscription Agreement as of the date of this Subscription Agreement, and as of the Closing Time as if made at and as of the Closing Time, the Corporation having accepted this Subscription Agreement on or before the Closing Date. On or before Time, and the fulfillment of the following additional conditions as soon as possible and in any event not later than the Closing Date which shall occur on or before September 1, 2005, the Agent shall receive the followingTime:
(a) payment by the Intercreditor AgreementSubscriber of the Aggregate Subscription Price by certified cheque or bank draft payable to "DLA Piper (Canada) LLP, in form and substance satisfactory Trust" (see Section 10.2 for mailing address), or by electronic money transfer to the AgentDLA Piper (Canada) LLP at: Beneficiary: DLA Piper (Canada) LLP ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, duly executed▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, and in full force and effect;▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Bank Name: Royal Bank of Canada ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Account Name: DLA Piper (Canada) LLP, In Trust Account Number: ▇▇▇▇▇▇▇ Transit Number: 00002 Institution Number: 003 Swift Number: ▇▇▇▇▇▇▇▇ ABA Number:* ▇▇▇▇▇▇▇▇▇ Reference: Brattle ▇▇▇▇▇ PP
(b) a certificate from the Secretary of each Borrower Party (i) attesting Subscriber having properly completed, signed and delivered this Subscription Agreement to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan DocumentsCorporation;
(c) copies the Subscriber having properly completed, signed and delivered the Particulars of each Borrower Party's governing documentsSubscriber, in the form attached hereto as amendedSchedule "A", modified, or supplemented to the Closing Date, certified by the Secretary of each Borrower PartyCorporation;
(d) if the Subscriber is a certificate of status with respect person resident in Canada, unless the Subscriber is relying on the representation in subsection 6.1(c)(i) hereof, the Subscriber having properly completed, signed and delivered the Canadian Accredited Investor Certificate, in the form attached hereto as Schedule "B", and, if applicable, Appendix "A" and/or Appendix "B" to each Borrower PartySchedule "B", dated within ten (10) days of to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdictionCorporation;
(e) certificates of status with respect if the Subscriber is not a person resident in Canada, the United States or the United Kingdom, the Subscriber having properly completed, signed and delivered the Foreign Purchaser's Certificate, in the form attached hereto as Schedule "C", to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictionsCorporation;
(f) an opinion of counsel for if the Borrower Parties Subscriber is a person resident in the United Kingdom, the Subscriber having properly completed, signed and delivered the U.K. Purchaser's Certificate, in the form and substance satisfactory attached hereto as Schedule "D", to the AgentCorporation;
(g) copies of all existing Blocked Account Agreementsif the Subscriber is in the United States or is, or is subscribing for the account or benefit of, a U.S. Person, the Subscriber having properly completed, signed and Agent shall be satisfied that all such agreements are delivered the U.S. Accredited Investor Certificate, in full force and effectthe form attached hereto as Schedule "E", to the Corporation;
(h) if the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted hereinSubscriber is not an individual, and Agent shall have received searches reflecting has not provided the filing of all such financing statementsform to the TSXV previously, the Subscriber having properly completed, signed and delivered the TSXV Form 4C Corporate Placee Registration Form, in the form attached hereto as Schedule "F", to the Corporation;
(i) subject to subsection 6.2(s) hereof, the Third Amendment to conditional approval of the First Lien Credit Agreement shall have been executed;Private Placement by the TSXV; and
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation sale of the transactions contemplated hereby Subscription Receipts being exempt from the prospectus and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the Agentregistration requirements under applicable Securities Laws.
Appears in 2 contracts
Sources: Subscription Agreement (Salona Global Medical Device Corp), Subscription Agreement (Salona Global Medical Device Corp)
Conditions of Closing. 8.1. Required Deliveries The Subscriber on its own behalf and, if applicable, on behalf of others for whom it is acting hereunder, acknowledges and agrees that the obligations of the Corporation hereunder are conditional on the accuracy of the representations and warranties of the Subscriber contained in this Subscription Agreement as of the date of this Subscription Agreement, and as of the Closing Time as if made at and as of the Closing Time, the Corporation having accepted this Subscription Agreement on or before the Closing Date. On or before Time, and the fulfillment of the following additional conditions as soon as possible and in any event not later than the Closing Date which shall occur on or before September 1, 2005, the Agent shall receive the followingTime:
(a) payment by the Intercreditor AgreementSubscriber of the Aggregate Subscription Price by certified cheque or bank draft payable to "DLA Piper (Canada) LLP, in form and substance satisfactory Trust" (see Section 10.2 for mailing address), or by electronic money transfer to DLA Piper (Canada) LLP at: Beneficiary: DLA Piper (Canada) LLP ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Bank Name: Royal Bank of Canada ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Account Name: DLA Piper (Canada) LLP, In Trust Account Number: ▇▇▇▇▇▇▇ Transit Number: 00002 Institution Number: 003 Swift Number: ▇▇▇▇▇▇▇▇ ABA Number:* ▇▇▇▇▇▇▇▇▇ Reference: Brattle PP If attempting to wire US$ funds to the Agent, duly executed, and in full force and effect;above than include ABA Number ▇▇▇▇▇▇▇▇▇
(b) a certificate from the Secretary of each Borrower Party (i) attesting Subscriber having properly completed, signed and delivered this Subscription Agreement to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan DocumentsCorporation;
(c) copies the Subscriber having properly completed, signed and delivered the Particulars of each Borrower Party's governing documentsSubscriber, in the form attached hereto as amendedSchedule "A", modified, or supplemented to the Closing Date, certified by the Secretary of each Borrower PartyCorporation;
(d) if the Subscriber is a certificate of status with respect person resident in Canada, unless the Subscriber is relying on the representation in subsection 6.1(c)(i) hereof, the Subscriber having properly completed, signed and delivered the Canadian Accredited Investor Certificate, in the form attached hereto as Schedule "B", and, if applicable, Appendix "A" and/or Appendix "B" to each Borrower PartySchedule "B", dated within ten (10) days of to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdictionCorporation;
(e) certificates of status with respect if the Subscriber is not a person resident in Canada, the United States or the United Kingdom, the Subscriber having properly completed, signed and delivered the Foreign Purchaser's Certificate, in the form attached hereto as Schedule "C", to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictionsCorporation;
(f) an opinion of counsel for if the Borrower Parties Subscriber is a person resident in the United Kingdom, the Subscriber having properly completed, signed and delivered the U.K. Purchaser's Certificate, in the form and substance satisfactory attached hereto as Schedule "D", to the AgentCorporation;
(g) copies of all existing Blocked Account Agreementsif the Subscriber is in the United States or is, or is subscribing for the account or benefit of, a person in the United States or a U.S. Person, the Subscriber having properly completed, signed and Agent shall be satisfied that all such agreements are delivered the U.S. Accredited Investor Certificate, in full force and effectthe form attached hereto as Schedule "E", to the Corporation;
(h) if the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted hereinSubscriber is not an individual, and Agent shall have received searches reflecting has not provided the filing of all such financing statementsform to the TSXV previously, the Subscriber having properly completed, signed and delivered the TSXV Form 4C Corporate Placee Registration Form, in the form attached hereto as Schedule "F", to the Corporation;
(i) subject to subsection 6.2(s) hereof, the Third Amendment to conditional approval of the First Lien Credit Agreement shall have been executed;Private Placement by the TSXV; and
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation sale of the transactions contemplated hereby Subscription Receipts being exempt from the prospectus and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the Agentregistration requirements under applicable Securities Laws.
Appears in 2 contracts
Sources: Subscription Agreement (Salona Global Medical Device Corp), Subscription Agreement (Salona Global Medical Device Corp)
Conditions of Closing. 8.1The Subscriber understands that the Company will use the proceeds of the Offering for working capital and to further the organic and acquisition growth strategy of the Company. Required Deliveries The Subscriber acknowledges and agrees that the obligations of the Company hereunder are conditional on or before the accuracy of the representations and warranties of the Subscriber contained in this Subscription Agreement as of the date of this Subscription Agreement, and as of the Closing Date. On or before Time as if made at and as of the Closing Date which shall occur on or before September 1Time, 2005, and the Agent shall receive fulfillment of the followingfollowing additional conditions at the Closing Time:
(a) payment by the Intercreditor AgreementSubscriber of the Subscription Amount, payable in form and substance satisfactory U.S. funds to the Agent, duly executed, Company by wire transfer pursuant to the Company’s written wire instructions promptly following acceptance by the Company of this Subscription Agreement and in full force and effect;receipt by the Custodian of certificates representing the Securities.
(b) a certificate from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its executionSubscriber having properly completed, delivery, and performance of all Loan Documents required to be executed signed and delivered by such Borrower Party on the Closing Datethis Subscription Agreement to: Akerman Senterfitt ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, and authorizing specific officers of such Borrower Party to execute the same and ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Fax (ii▇▇▇) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;▇▇▇-▇▇▇▇
(c) copies the Subscriber having properly completed, signed and delivered a Certificate of each Borrower Party's governing documentsSubscriber in the form attached to the Subscription Agreement as Schedule “C”: The Company acknowledges and agrees that the obligations of the Subscriber hereunder are conditional on the accuracy of the representations and warranties of the Company contained in this Subscription Agreement as of the date of this Subscription Agreement, and as of the Closing Time as if made at and as of the Closing Time, and the fulfilment of the following conditions, amogst others, as amendedsoon as possible and in any event not later than the Closing Time:
(a) all covenants, modified, agreements and conditions contained in this Subscription Agreement to be performed by the Company on or supplemented prior to the Closing Dateshall have been performed or complied with in all material respects, certified by including without limitation, obtaining conditional approval from the Secretary TSX and NASDAQ for the listing of each Borrower Party;the Common Shares, being effected on a private placement basis, and to list the Common Shares; and
(d) a certificate of status with respect to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(hb) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent Company shall have received searches reflecting delivered to Akerman Senterfitt, the filing of all such financing statements;following items:
(i) a copy of the Third Amendment to certificate(s) representing the First Lien Credit Agreement shall have been executedCommon Shares purchased by the Subscriber registered in the name of the Subscriber or its nominee;
(jii) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party a copy of this Subscription Agreement or any other Loan Document or with duly executed by the consummation of the transactions contemplated hereby and therebyCompany; and
(kiii) all such other documents and legal matters in connection with relating to the transactions contemplated by this Subscription Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the AgentSecurities Purchase Agreement.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Swisher Hygiene Inc.), Securities Purchase Agreement (Swisher Hygiene Inc.)
Conditions of Closing. 8.1. Required Deliveries on or before The obligation of the Underwriters to purchase the Initial Units at the Closing Date. On or before Time on the Closing Date which and to purchase any Additional Units at the Closing Time on an Option Closing Date shall occur on or before September 1, 2005, the Agent shall receive be subject to the following:
(a) the Intercreditor Underwriters shall have received a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one business day prior to the Closing Date from the Company and MMDC;
(b) the Underwriters shall have received a certificate from the Company, dated as of the Closing Date and addressed to the Underwriters, signed by an officer of such person with respect to the Constating Documents of the Company, all resolutions of the Company’s board of directors relating to the Offering Documents, this Agreement, the Warrant Indenture and the certificates representing the Compensation Options, and the transactions contemplated hereby and thereby, the incumbency and specimen signatures of signing officers, and such other matters as the Underwriters may reasonably request;
(c) the Underwriters shall have received a certificate from the Company, dated as of the Closing Date and addressed to the Underwriters, signed by the Co-Chief Executive Officer and the Chief Financial Officer of the Company, certifying for and on behalf of the Company, to the best of their knowledge, information and belief, that, as at the Closing Time:
(i) no order, ruling or determination having the effect of suspending the sale or ceasing the trading in the Offered Units or any other securities of the Company has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or are contemplated or threatened by any regulatory authority;
(ii) since the beginning of the current financial year of the Company, (A) there has been no adverse change (financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Company and the Subsidiaries (taken as a whole); and (B) other than as disclosed in the Offering Documents, no transaction has been entered into by the Company or any Subsidiary which is or would be material to such person other than in the ordinary course of business;
(iii) the Company has complied with all the material terms, and fulfilled the covenants and conditions of this Agreement on its part to be complied with up to the Closing Time;
(iv) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects (except for representations and warranties that are qualified as to materiality or Material Adverse Effect, which shall be true and correct in all respects) with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated by this Agreement; and
(v) the Final Receipt has been issued by the OSC for the Prospectus pursuant to the Passport System and, to the knowledge of such persons, no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Common Shares or other securities of the Company, or the Shares and Warrants to be issued and sold by the Company, has been issued and no proceedings for such purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened;
(d) the Underwriters shall have received satisfactory evidence that all requisite regulatory approvals and consents have been obtained by the Company in order to complete the Offering; and (ii) all necessary forms have been filed with the CSE to effect the listing of the Shares, the Warrants and the Compensation Shares issued upon the exercise of the Compensation Options, on the CSE, subject to the satisfaction of standard listing conditions of the CSE;
(e) the Underwriters shall have received a legal opinion addressed to the Underwriters, in the form and substance satisfactory to the AgentUnderwriters, duly executed, and in full force and effect;
(b) a certificate from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of each Borrower Party;
(d) a certificate of status with respect to each Borrower Partyacting reasonably, dated within ten (10) days as of the Closing Date, from Canadian legal counsel for the Company, which counsel, in turn may rely, only as to matters of fact, on certificates of officers of the Company, as appropriate and subject to confirmation by the Underwriters, with respect to the following matters:
(i) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not listed as in default of Applicable Securities Laws in any of the Qualifying Jurisdictions which maintain such certificate a list;
(ii) the Company is a corporation duly amalgamated and validly existing under the laws of British Columbia, and has all requisite corporate power, capacity and authority to carry on its business as now conducted and to own, lease and operate its property and assets as described in the Prospectus;
(iii) as to the authorized and issued capital of the Company;
(iv) the rights, privileges, restrictions and conditions attaching to the Shares, the Warrants and the Warrant Shares are accurately summarized in all material respects in the Prospectus;
(v) the Initial Shares and Initial Warrants sold pursuant to the Offering have been duly and validly created and authorized and are issued and are outstanding as fully paid shares or securities (as the case may be) of the Company and, in the case of the Initial Shares, are non-assessable;
(vi) the Over-Allotment Option has been duly and validly authorized and granted by the Company and the Additional Shares and Additional Warrants issuable upon the exercise of the Over-Allotment Option have been duly and validly created, allotted and reserved for issuance by the Company and, upon the exercise of the Over-Allotment Option including receipt by the Company of payment in full therefor, the Additional Shares and the Additional Warrants will be duly and validly created, authorized, issued and outstanding as fully paid shares or securities (as the case may be) and, in the case of the Additional Shares, are non- assessable;
(vii) the Warrant Shares have been duly and validly allotted and reserved for issuance and upon the exercise of the Warrants in accordance with their terms, the Warrant Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(viii) the Compensation Options have been duly created, authorized and issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdictionCompany;
(eix) the Compensation Shares issuable upon the exercise of the Compensation Options have been validly reserved for issuance by the Company and, upon the payment of the exercise price therefor and the issue thereof, the Compensation Shares will be validly issued as fully paid and non-assessable Common Shares
(x) the Company has all necessary corporate power and capacity: (i) to execute and deliver this Agreement, the Warrant Indenture and to issue the certificates representing the Compensation Options, and to perform its obligations hereunder and thereunder; (ii) to offer, issue, sell and deliver the Initial Shares and the Initial Warrants comprising the Initial Units; (iii) to grant the Over-Allotment Option and offer, issue, sell and deliver the Additional Shares and Additional Warrants comprising the Additional Units issuable upon exercise of status the Over- Allotment Option; (iv) to issue, sell and deliver the Warrant Shares upon the exercise of the Warrants; and (v) to issue and grant the Compensation Options and to issue the Compensation Shares upon the exercise of the Compensation Options;
(xi) all necessary corporate action has been taken by the Company to authorize the execution and delivery of each of the Preliminary Prospectus, the Prospectus and any Supplementary Material and the filing thereof with the Securities Commissions;
(xii) the Company has duly authorized, executed and delivered, this Agreement, the Warrant Indenture and authorized the performance of its obligations hereunder and thereunder, including the offering, creation (as applicable), issue, sale and delivery of the Initial Shares and the Initial Warrants comprising the Initial Units, the grant of the Over-Allotment Option, the offering, creation (as applicable) issue, sale and delivery of the Additional Shares and Additional Warrants comprising the Additional Units upon exercise of the Over-Allotment Option, the issue of the Compensation Options and the Compensation Shares upon the exercise of the Compensation Options, and the issue, sale and delivery of the Warrant Shares upon the exercise of the Warrants, and each of this Agreement and the Warrant Indenture constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to appropriate qualifications that are customary of an offering of this nature;
(xiii) the execution and delivery of this Agreement and the Warrant Indenture and the fulfillment of the terms hereof and thereof, including the offering, creation (as applicable), issue, sale and delivery of the Initial Shares and the Initial Warrants comprising the Initial Units, the grant of the Over-Allotment Option, the offering, creation (as applicable) issue, sale and delivery of the Additional Shares and Additional Warrants comprising the Additional Units upon exercise of the Over- Allotment Option, the issuance and grant of the Compensation Options and the issuance of the Compensation Shares upon the exercise of the Compensation Options, and the issue, sale and delivery of the Warrant Shares upon the exercise of the Warrants, and the consummation of the transactions contemplated by this Agreement and the Warrant Indenture, do not result in a breach of (whether after notice or lapse of time or both) or constitute a default under (i) any of the terms, conditions or provisions of the articles of incorporation or amalgamation, as applicable, of the Company, or (ii) the laws of the Province of Ontario and the federal laws of Canada applicable therein;
(xiv) the form and terms of the definitive certificate representing the Common Shares and the Warrants have been approved by the directors of the Company and comply in all material respects with the BCBCA, the articles and by-laws of the Company and the rules of the CSE;
(xv) Odyssey Trust Company is the duly appointed registrar and transfer agent for the Common Shares and Restricted Voting Shares and as Warrant agent, registrar and transfer agent for the Warrants;
(xvi) all necessary documents have been filed, all requisite proceedings have been taken, all approvals, permits and consents of the appropriate regulatory authority in each Qualifying Jurisdiction have been obtained, and all necessary legal requirements have been fulfilled, in order to qualify the distribution of the Initial Shares and the Initial Warrants comprising the Initial Units, the Compensation Options, the Over-Allotment Option and the Additional Shares and the Additional Warrants comprising the Additional Units in each of the Qualifying Jurisdictions through dealers who are registered under Applicable Securities Laws and who have complied with the relevant provisions of such Applicable Laws;
(xvii) the issuance by the Company of (i) the Warrant Shares in accordance with and pursuant to the terms and conditions of the Warrants and the Warrant Indenture; and (ii) the Compensation Shares upon the exercise of the Compensation Options, is exempt from the prospectus requirements of the Applicable Securities Laws in the Qualifying Jurisdictions and no prospectus or other document is required to be filed, no proceeding is required to be taken and no approval, permit or consent of the Securities Commissions is required to be obtained by the Company under the Applicable Securities Laws in the Qualifying Jurisdictions to permit such issuance of the Warrant Shares and the Compensation Shares;
(xviii) the first trade in Warrant Shares underlying the Warrants and the Compensation Shares underlying the Compensation Options is exempt from the prospectus requirements of the Applicable Securities Laws in the Qualifying Jurisdictions and no prospectus or other document is required to be filed, no proceeding is required to be taken and no approval, permit, consent or authorization of regulatory authorities is required to be obtained by the Company under Applicable Securities Laws of the Qualifying Jurisdictions to permit such trade through registrants registered under Applicable Securities Laws who have complied with such laws and the terms and conditions of their registration, provided that (i) such trade is not a “control distribution” as that term is defined in National Instrument 45-102 – Resale of Securities at the time of such trade, (ii) the Company is a reporting issuer (as defined under Applicable Securities Laws) at the time of such first trade, and (iii) such first trade is not a transaction or series of transactions involving a purchase and sale or a repurchase and resale in the course of or incidental to a distribution;
(xix) subject only to the Standard Listing Conditions, the Shares, the Warrants and the Compensation Shares issuable upon the exercise of the Compensation Options, have been approved for listing on the CSE;
(xx) the execution and form of the certificates representing the Warrants and Compensation Options have been approved by the Company and comply with the requirements of the BCBCA;
(xxi) the summary under the heading “Certain Canadian Federal Income Tax Considerations” in the Prospectus is a fair and adequate summary of the principal Canadian federal income tax considerations generally applicable to the acquisition, holding and disposition of the Shares, Warrants and Warrant Shares, subject to the qualifications, assumptions, limitations and understandings set out in such summary; and
(xxii) confirming the statements under the heading “Eligibility for Investment” in the Prospectus, subject to the qualifications, assumptions and limitations set out under such heading. In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to counsel to the Underwriters, acting reasonably, as to the qualification for distribution of the Offered Units or opinions may be given directly by local counsel of the Company with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates those items and as to be issued other matters governed by the appropriate officer laws of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) province or provinces in which its failure the Company’s Canadian counsel are qualified to be duly qualified or licensed would constitute a Material Adverse Effectpractice and may rely, which to the extent appropriate in the circumstances but only as to matters of fact, on certificates shall indicate that such Borrower Party is in good standing in such jurisdictionsof officers of the Company and others;
(f) an the Underwriters shall have received a legal opinion from legal counsel to, and duly qualified to practice law in the jurisdiction of existence of MMDC addressed to the Underwriters and legal counsel for to the Borrower Parties Underwriters with respect to: (i) the existence of MMDC; (ii) the issued and outstanding securities of MMDC and the securities thereof held by the Company; (iii) the corporate power and capacity to carry on its business and activities and to own and lease its property and assets; such opinion to be in form and substance satisfactory substance, acceptable to the AgentUnderwriters and their legal counsel, acting reasonably;
(g) copies the Underwriters shall have received a regulatory opinion from the Company’s regulatory counsel that each of all existing Blocked Account Agreementsthe Company and MMDC is in compliance with applicable Nevada state cannabis laws addressed to the Underwriters, such opinion to be in form and Agent shall be satisfied that all such agreements are in full force substance, acceptable to the Underwriters and effecttheir legal counsel, acting reasonably;
(h) if any Initial Units or Additional Units are sold to purchasers in the Agent shall be satisfied that financing statements filed against all Borrower Parties naming AgentUnited States or who are, or are purchasing for the account or benefit of, a U.S. Person, the Underwriters will receive, at the Closing Time, a favourable legal opinion dated the Closing Date from United States securities counsel to the Company, to the effect that no registration of Lendersthe Initial Units and Additional Units offered and sold to purchasers in the United States or who are, as or are purchasing for the secured creditor are sufficient account or benefit of, a U.S. Person, will be required under the U.S. Securities Act, such opinion to create a second priority security interest be in all Collateralform and substance, except as otherwise permitted herein, and Agent shall have received searches reflecting acceptable to the filing of all such financing statementsUnderwriters;
(i) the Third Amendment Company shall cause its auditors and former auditors to deliver to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licensesUnderwriters a “bring down” comfort letter, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory addressed to the Agent.Underwriters and the board of direct
Appears in 2 contracts
Sources: Underwriting Agreement, Underwriting Agreement
Conditions of Closing. 8.1. Required Deliveries The Subscriber on its own behalf and, if applicable, on behalf of others for whom it is acting hereunder, acknowledges and agrees that the obligations of the Corporation hereunder are conditional on the accuracy of the representations and warranties of the Subscriber contained in this Subscription Agreement as of the date of this Subscription Agreement, and as of the Closing Time as if made at and as of the Closing Time, the Corporation having accepted this Subscription Agreement on or before the Closing Date. On or before Time, and the fulfillment of the following additional conditions as soon as possible and in any event not later than the Closing Date which shall occur on or before September 1, 2005, the Agent shall receive the followingTime:
(a) payment by the Intercreditor AgreementSubscriber of the Aggregate Subscription Price by certified cheque or bank draft payable to "DLA Piper (Canada) LLP, in form and substance satisfactory Trust" (see Section 10.2 for mailing address), or by electronic money transfer to DLA Piper (Canada) LLP at: Beneficiary: DLA Piper (Canada) LLP ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Bank Name: Royal Bank of Canada ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Account Name: DLA Piper (Canada) LLP, In Trust Account Number: ▇▇▇▇▇▇▇ Transit Number: 00002 Institution Number: 003 Swift Number: ▇▇▇▇▇▇▇▇ ABA Number:* ▇▇▇▇▇▇▇▇▇ Reference: Brattle PP If attempting to wire US$ funds to the Agent, duly executed, and in full force and effect;above than include ABA Number ▇▇▇▇▇▇▇▇▇
(b) a certificate from the Secretary of each Borrower Party (i) attesting Subscriber having properly completed, signed and delivered this Subscription Agreement to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan DocumentsCorporation;
(c) copies the Subscriber having properly completed, signed and delivered the Particulars of each Borrower Party's governing documentsSubscriber, in the form attached hereto as amendedSchedule "A", modified, or supplemented to the Closing Date, certified by the Secretary of each Borrower PartyCorporation;
(d) if the Subscriber is a certificate of status with respect person resident in Canada, unless the Subscriber is relying on the representation in subsection 6.1(c)(i) hereof, the Subscriber having properly completed, signed and delivered the Canadian Accredited Investor Certificate, in the form attached hereto as Schedule "B", and, if applicable, Appendix "A" and/or Appendix "B" to each Borrower PartySchedule "B", dated within ten (10) days of to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdictionCorporation;
(e) certificates of status with respect if the Subscriber is not a person resident in Canada, the United States or the United Kingdom, the Subscriber having properly completed, signed and delivered the Foreign Purchaser's Certificate, in the form attached hereto as Schedule "C", to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictionsCorporation;
(f) an opinion of counsel for if the Borrower Parties Subscriber is a person resident in the United Kingdom, the Subscriber having properly completed, signed and delivered the U.K. Purchaser's Certificate, in the form and substance satisfactory attached hereto as Schedule "D", to the AgentCorporation;
(g) copies of all existing Blocked Account Agreementsif the Subscriber is not an individual, and Agent shall be satisfied that all such agreements are has not provided the form to the TSXV previously, the Subscriber having properly completed, signed and delivered the TSXV Form 4C Corporate Placee Registration Form, in full force and effectthe form attached hereto as Schedule "E", to the Corporation;
(h) subject to subsection 6.2(s) hereof, the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for conditional approval of the benefit of Lenders, as Private Placement by the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;TSXV; and
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation sale of the transactions contemplated hereby Subscription Receipts being exempt from the prospectus and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the Agentregistration requirements under applicable Securities Laws.
Appears in 2 contracts
Sources: Subscription Agreement (Salona Global Medical Device Corp), Subscription Agreement (Salona Global Medical Device Corp)
Conditions of Closing. 8.1The Subscriber understands that the Company will use the proceeds of the Offering for working capital and to further the organic and acquisition growth strategy of the Company. Required Deliveries The Subscriber acknowledges and agrees that the obligations of the Company hereunder are conditional on or before the accuracy of the representations and warranties of the Subscriber contained in this Subscription Agreement as of the date of this Subscription Agreement, and as of the Closing Date. On or before Time as if made at and as of the Closing Date which shall occur on or before September 1Time, 2005, and the Agent shall receive fulfillment of the followingfollowing additional conditions at the Closing Time:
(a) payment by the Intercreditor AgreementSubscriber of the Subscription Amount, payable in form and substance satisfactory U.S. funds to the Agent, duly executed, Company by wire transfer pursuant to the Company’s written wire instructions promptly following acceptance by the Company of this Subscription Agreement and in full force and effect;receipt by the Custodian of certificates representing the Securities.
(b) a certificate from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its executionSubscriber having properly completed, delivery, and performance of all Loan Documents required to be executed signed and delivered by such Borrower Party on the Closing Datethis Subscription Agreement to: Akerman Senterfitt ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, and authorizing specific officers of such Borrower Party to execute the same and ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Fax (ii▇▇▇) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;▇▇▇-▇▇▇▇
(c) copies the Subscriber having properly completed, signed and delivered a Certificate of each Borrower Party's governing documentsSubscriber in the form attached to the Subscription Agreement as Schedule “C”: The Company acknowledges and agrees that the obligations of the Subscriber hereunder are conditional on the accuracy of the representations and warranties of the Company contained in this Subscription Agreement as of the date of this Subscription Agreement, and as of the Closing Time as if made at and as of the Closing Time, and the fulfilment of the following conditions, amongst others, as amendedsoon as possible and in any event not later than the Closing Time:
(a) all covenants, modified, agreements and conditions contained in this Subscription Agreement to be performed by the Company on or supplemented prior to the Closing Dateshall have been performed or complied with in all material respects, certified by including without limitation, obtaining conditional approval from the Secretary TSX and NASDAQ for the listing of each Borrower Party;the Common Shares, being effected on a private placement basis, and to list the Common Shares; and
(d) a certificate of status with respect to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(hb) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent Company shall have received searches reflecting delivered to Akerman Senterfitt, the filing of all such financing statements;following items:
(i) a copy of the Third Amendment to certificate(s) representing the First Lien Credit Agreement shall have been executedCommon Shares purchased by the Subscriber registered in the name of the Subscriber or its nominee;
(jii) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party a copy of this Subscription Agreement or any other Loan Document or with duly executed by the consummation of the transactions contemplated hereby and therebyCompany; and
(kiii) all such other documents and legal matters in connection with relating to the transactions contemplated by this Subscription Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the AgentSecurities Purchase Agreement.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Swisher Hygiene Inc.), Securities Purchase Agreement (Swisher Hygiene Inc.)
Conditions of Closing. (a) The Subscriber acknowledges and agrees that, as the sale of the Units will not be qualified by a prospectus, such sale and issuance is subject to the condition that the Subscriber (or, if applicable, any others for whom it is contracting hereunder) returns to the Corporation and/or the Agent all documentation required by the Securities Laws. The Subscriber acknowledges and agrees that the Agent and/or the Corporation may provide the Securities Regulators with a list setting forth the identities of the beneficial purchasers under the Offering together with other personal information, as described in section 8.1. Required Deliveries Notwithstanding that the Subscriber may be purchasing the Subscribed Units as agent on behalf of an undisclosed principal, the Subscriber agrees to provide, on request, particulars as to the identity of such undisclosed principal as may be required by the Corporation in order to comply with the foregoing.
(b) The Subscriber acknowledges and agrees that the obligations of the Corporation hereunder are conditional on the accuracy of the representations and warranties of the Subscriber contained in this Subscription Agreement as of the date of this Subscription Agreement, and as of the Closing Time as if made at and as of the Closing Time, and, unless other arrangements acceptable to the Agent have been made, payment by the Subscriber of the Subscription Amount by certified cheque or before bank draft payable to the Agent as soon as possible and in any event not later than the Business Day first preceding the Closing Date. On or before .
(c) The Subscriber acknowledges and agrees that the Closing Date which shall occur obligations of the Corporation hereunder are also conditional on or before September 1, 2005, the Agent shall receive the following:
(ai) the Intercreditor AgreementCorporation accepting the Subscriber’s subscription, in form and substance satisfactory to the Agent, duly executed, and whole or in full force and effectpart;
(bii) a certificate the offer, sale and issuance of the Subscribed Units being exempt from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, prospectus and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures registration requirements of the officers of such Borrower Party authorized to sign such Loan DocumentsSecurities Laws;
(ciii) copies of each Borrower Party's governing documentsthe Subscriber having properly completed, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of each Borrower Party;
(d) a certificate of status with respect to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form signed and substance satisfactory delivered this Subscription Agreement to the Agent;
(giv) copies of all existing Blocked Account Agreements, and Agent shall be the closing conditions in the Agency Agreement being satisfied that all such agreements are in full force and effector waived by the relevant party;
(hv) if purchasing less than $150,000 of securities under the Agent shall be satisfied Offering as principal, or if acting on behalf of one or more beneficial purchasers if any such beneficial purchasers are purchasing less than $150,000 of securities under the Offering, the Subscriber having properly completed, signed and delivered the attached Schedule “A” hereto.
(d) The Corporation acknowledges and agrees that financing statements filed against all Borrower Parties naming Agent, for the benefit obligations of Lendersthe Subscriber hereunder are conditional on the accuracy of the representations and warranties of the Corporation contained in this Subscription Agreement and the Agency Agreement, as the secured creditor are sufficient to create a second priority security interest in all Collateralcase may be, except as otherwise permitted hereinof the date of this Subscription Agreement and of the Agency Agreement, as the case may be, and Agent shall have received searches reflecting as of the filing Closing Time as if made at and as of all such financing statements;the Closing Time and the fulfillment of the following additional conditions as soon as possible and in any event not later than the Closing Time unless waived by the Agent:
(i) all covenants, agreements and conditions contained in this Subscription Agreement and the Third Amendment Agency Agreement, as the case may be, to be performed by the Corporation on or prior to the First Lien Credit Agreement Closing Date shall have been executed;
(j) Each Borrower Party shall have received performed or complied with in all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and therebymaterial respects; and
(kii) all the Corporation shall have delivered to the Agent’s counsel the following items:
(1) certificates representing the Unit Securities purchased by the Subscriber registered in the name of the Subscriber or its nominee;
(2) a copy of this Subscription Agreement duly executed by the Corporation; and
(3) such other documents and legal matters in connection with relating to the transactions contemplated by this Subscription Agreement shall have been delivered, executed, as the Agent or recorded and shall be in form and substance satisfactory to the Agentits counsel may reasonably request.
Appears in 1 contract
Conditions of Closing. 8.1. Required Deliveries on The Lender shall not execute this Amendment unless the following conditions precedent are satisfied or before waived, time being of the Closing Date. On or before the Closing Date which shall occur on or before September 1, 2005, the Agent shall receive the followingessence:
(a) the Intercreditor Agreement, in form The Borrower shall have executed and substance satisfactory delivered to the Agent, duly executed, Lender this Amendment and in full force the First Amendment to Amended and effectRestated Revolving Credit Facility Note;
(b) a certificate from The Borrower shall have delivered to the Secretary of each Borrower Party Lender (i) attesting to a certified copy (as of the date this Amendment) of the resolutions of such the Borrower Party's board and of directors the Subsidiary Guarantors authorizing the execution of this Amendment;
(c) The Lender shall have received certificates from the appropriate Secretaries of State or other applicable Governmental Authorities dated not more than thirty (30) days before the date hereof showing the good standing in its execution, deliverystate of incorporation;
(d) The Borrower and Subsidiary Guarantors shall have delivered to the Lender a current Certificate of Good Standing and certificates of authority to transact business in each state where registered;
(e) The Borrower shall have delivered to the Lender an opinion by the Borrower’s counsel in form and detail satisfactory to the Lender’s counsel;
(f) The Lender shall be satisfied with the final terms and conditions of, and performance the documentation relating to, the merger of ComGlobal into Alpha-N (a Subsidiary of Borrower) and provide Lender with executed copies of all Loan Documents required final operative merger documents;
(g) The Lender shall receive a Joinder Agreement duly executed by ComGlobal and ComGlobal Information;
(h) The Lender shall have received (i) the Second Amendment to Pledge Agreement (the Pledge Agreement dated November 2, 2001 as amended by the First Amendment to Pledge Agreement and as it may be further amended, modified and supplemented from time to time, the “Amended Pledge Agreement”), executed by Borrower; (ii) the Pledge Agreement (the “ComGlobal Pledge Agreement”) by and between ComGlobal and Lender; and (iii) simultaneously with or promptly following the execution and delivery of this Agreement all stock certificates evidencing the stock pledged to the Lender pursuant to the Amended Pledge Agreement and the ComGlobal Pledge Agreement, together with duly executed in blank undated stock powers attached thereto;
(i) The Lender shall have received the Second Amended and Restated Continuing and Unconditional Guaranty (as amended, modified and supplemented from time to time, the “Guaranty”), executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party Subsidiary Guarantors;
(j) Pursuant to execute the same and (ii) certifying the names and true signatures Section 2.19 of the officers Agreement, the Borrower shall have provided written notice to the Lender of such Borrower Party authorized to sign such the disposition of ABI, thereby releasing ABI from all obligations it may have under the Loan Documents;
(ck) copies of each Borrower Party's governing documentsNo material adverse change shall have occurred in the business, as amendedoperations, modifiedassets, properties, or supplemented to condition (financial or otherwise) of the Closing DateBorrower and its Subsidiaries since September 30, certified by the Secretary of each Borrower Party2004;
(dl) The Borrower shall have paid to the Lender, for itself alone a certificate fee in the amount of status One Hundred Thousand Dollars ($100,000) in consideration for the increase in Revolving Credit Facility Committed Amount together with respect to each Borrower Party, dated within ten (10) days all costs and expenses of the Closing Date, such certificate to be issued by Lender and the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of Lender’s counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and therebyAmendment; and
(km) all The Lender has received such other documents information, instruments, opinion, documents, certificates and legal matters reports as the Lender may in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the Agentits reasonable discretion deem necessary.
Appears in 1 contract
Sources: Credit Agreement (Analex Corp)
Conditions of Closing. 8.1. Required Deliveries on or before the Closing Date. On or before The occurrence of the Closing Date which shall occur on or before September 1, 2005, and obligation of each Lender to make its Loan is subject to satisfaction of the Agent shall receive the followingfollowing conditions precedent:
(a) The Administrative Agent’s receipt of the Intercreditor following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, and each dated (x) in the case of this Agreement, the Agreement Date, and (y) in the case of the remaining of the following Documents, the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Term Note executed by the Borrower in favor of each Lender requesting a Term Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly executedorganized or formed, and is validly existing, in good standing and qualified to engage in business in the jurisdiction of its incorporation or organization;
(v) favorable opinions of King & Spalding LLP and ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent, covering enforceability of the Loan Documents and other matters to be agreed upon;
(vi) a Compliance Certificate, as of the Closing Date, signed by a Responsible Officer of the Borrower, with customary supporting documentation, (A) demonstrating compliance with the financial covenants set forth in Section 7.11 on a pro-forma basis after giving effect to the incurrence of the Loans and the consummation of the Acquisition transactions to be financed with the proceeds of the Loans and (B) certifying that the conditions specified in clauses (g), (h) and (i) of this Section 4.01 have been satisfied; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Administrative Agent, the Arranger or any other Lender (whether pursuant to the Fee Letter or otherwise) on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs of the Administrative Agent as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) All governmental and third party approvals necessary in connection with the financing contemplated hereby shall have been obtained and be in full force and effect;, and copies of the same shall have been delivered to the Administrative Agent, together with a certificate signed by a Responsible Officer of the Borrower certifying the same.
(be) The Borrower shall have delivered to the Administrative Agent and the Lenders evidence of the consummation of the Acquisition transactions to be financed with the proceeds of the Loans, which consummation may occur substantially simultaneously with the advance of the Loans hereunder and which shall be in accordance with the Purchase Agreements, which are further defined and described on Schedule 6.11, without giving effect to any amendment, modification, waiver, or consent thereunder by the Borrower in any manner materially adverse to the interests of the Administrative Agent, the Arranger or the Lenders without the prior written consent of the Arranger, such consent not to be unreasonably withheld, conditioned or delayed.
(f) There shall not be in effect any order, injunction, judgment decree or ruling by a certificate from Governmental Authority of competent jurisdiction restraining, enjoining or otherwise prohibiting the Secretary consummation of each Borrower Party the Transactions.
(g) The representations and warranties of the Loan Parties contained in Article V or any other Loan Document, or which are contained in any other document furnished at any time under this Agreement, shall be true and correct in all material respects on and as of the Closing Date.
(h) No Default shall exist and be continuing as of the Closing Date after giving effect to the Transactions.
(i) attesting There shall not have occurred a material adverse change since December 31, 2012 in the business, assets, operations, financial condition or business prospects of the Borrower and its Consolidated Entities taken as a whole, or in the facts and information regarding such entities as represented to date.
(j) The Administrative Agent and the Lenders shall have received all documentation and other information about the Loan Parties as shall have been reasonably requested by the Administrative Agent or such Lender that it shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA Patriot Act, in each case to the resolutions of extent requested by the Administrative Agent or such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and Lender at least three (ii3) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented Business Days prior to the Closing Date, certified by the Secretary of each Borrower Party;.
(dk) a certificate of status with respect to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and The Administrative Agent shall have received searches reflecting Borrower’s unaudited financial statements as of June 30, 2013 and the filing Borrower’s pro-forma financial statements as of all such financing statements;
(i) the Third Amendment June 30, 2013 after giving effect to the First Lien Credit Agreement proposed Acquisition to be funded with the proceeds of the Loans, which shall have been executed;
(j) Each be in the form of the pro forma financial statements required to be filed by the Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority with the Securities and Exchange Commission in connection with the execution and delivery by such Borrower Party of this Agreement Borrower’s proposed equity offering to be consummated on or any other Loan Document or with about the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the AgentClosing Date.
Appears in 1 contract
Conditions of Closing. 8.1. Required Deliveries on or before the Closing Date. On or before The obligation of each Lender to make its initial Loan and of each Issuing Bank to issue any Letters of Credit hereunder shall not become effective, and the Closing Date shall not occur, until the date on which shall occur on or before September 1, 2005, each of the Agent shall receive the followingfollowing conditions is satisfied:
(a) The Administrative Agent’s receipt of the Intercreditor Agreementfollowing, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, duly executed, each Lender and in full force and effectthe Borrower;
(bii) a certificate from Note executed by the Secretary Borrower in favor of each Borrower Party Lender requesting a Note;
(iiii) attesting to the such certificates of resolutions or other action, incumbency certificates and/or other certificates of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures Responsible Officers of the officers Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of such Borrower Party each Responsible Officer thereof authorized to sign such act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(civ) copies such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized, and that the Borrower is validly existing, in good standing and qualified to engage in business in the States of each Borrower Party's governing documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of each Borrower PartyDelaware and California;
(dv) a certificate favorable written opinion of status with respect Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Borrower Party, Lender and dated within ten (10) days as of the Closing Date, covering such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory matters relating to the Agent;
(g) copies of all existing Blocked Account AgreementsBorrower, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agentthis Agreement, for the benefit of Lenders, as the secured creditor are sufficient or other matters incident to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement as the Administrative Agent may reasonably require;
(vi) a certificate signed by a Responsible Officer of the Borrower (on behalf of the Borrower) certifying that the conditions specified in Sections 4.02(a) and (b) have been satisfied; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been deliveredpaid.
(c) The Administrative Agent shall have received reasonably satisfactory evidence that the Credit Agreement, executeddated as of November 7, 2006 among the Borrower, Bank of America, N.A., as administrative agent and the other agents and lenders from time to time parties thereto, as amended, modified or recorded supplemented, shall have been terminated and all amounts due thereunder shall have been paid in full. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender and Issuing Bank that has signed this Agreement (and each such Lender’s or Issuing Bank’s Affiliates, successors and/or assigns) shall be in form and substance deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender and Issuing Bank unless the AgentAdministrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Ebay Inc)
Conditions of Closing. 8.1. Required Deliveries on or before The effectiveness of this Agreement is subject to satisfaction of the Closing Date. On or before the Closing Date which shall occur on or before September 1, 2005, the Agent shall receive the followingfollowing conditions precedent:
(a) The Administrative Agent’s receipt of the Intercreditor Agreementfollowing, each of which shall be originals, telecopies or pdf copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower and executed counterparts of the Advisor Fee Subordination Agreement, the Guaranty and the Security Agreement;
(ii) Notes executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly executedorganized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in the jurisdiction of its formation;
(v) a favorable opinion of ▇▇▇▇▇ ▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(bvii) a certificate from signed by a Responsible Officer of the Secretary Borrower certifying (A) that the conditions specified in Sections 4.03(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of each Borrower Party the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (iC) attesting that, after giving effect to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required requested Credit Extensions to be executed and delivered by such Borrower Party made on the Closing Date, and authorizing specific officers the Total Revolving Outstandings shall not exceed the Borrowing Base as of such Borrower Party to execute the same Closing Date and (iiD) certifying the names and true signatures absence of any action, suit, investigation or proceeding pending in any court or before any arbitrator or governmental authority against any Loan Party that could reasonably be expected to have a Material Adverse Effect;
(viii) a duly completed pro forma Compliance Certificate as of the officers last day of the fiscal quarter of the Borrower ended on September 30, 2012, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent for itself and the benefit of the Lenders has been named as additional insured or loss payee, as the case may be;
(x) with respect to the Collateral:
(A) searches of Uniform Commercial Code filings in the jurisdiction of formation of each Loan Party or where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral, copies of the financing statements on file in such Borrower Party authorized jurisdictions and evidence that no Liens exist other than Liens permitted by Section 7.01; and
(B) UCC financing statements for each appropriate jurisdiction as is necessary, in the Administrative Agent’s reasonable discretion, to sign perfect the Administrative Agent’s security interest in the Collateral; and
(xi) such Loan Documents;other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) copies Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of each Borrower Party's governing documents, as amended, modified, counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or supplemented to on the Closing Date, certified plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Secretary closing proceedings (provided that such estimate shall not thereafter preclude a final settling of each accounts between the Borrower Party;
(d) a certificate of status with respect to each Borrower Party, dated within ten (10) days and the Administrative Agent). Without limiting the generality of the Closing Dateprovisions of the last paragraph of Section 9.03, such certificate for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Partysatisfied with, each dated within thirty (30) days of the Closing Date, such certificates document or other matter required thereunder to be issued consented to or approved by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance acceptable or satisfactory to a Lender unless the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Administrative Agent shall have received searches reflecting the filing of all notice from such financing statements;
(i) the Third Amendment Lender prior to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the Agentproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Cole Corporate Income Trust, Inc.)
Conditions of Closing. 8.1. Required Deliveries The Subscriber acknowledges and agrees that the obligations of the Corporation hereunder are conditional on or before the accuracy of the representations and warranties of the Subscriber contained in this Subscription Agreement as of the date of this Subscription Agreement and the Corporation is relying on the truth of the representations and warranties of the Subscriber contained in this Subscription Agreement as of the date of this Subscription Agreement, and as of the Closing Date. On or before Time as if made at and as of the Closing Date which shall occur on or before September 1Time, 2005, and the Agent shall receive fulfillment of the followingfollowing additional conditions as soon as possible and in any event not later than the Closing Time:
(a) on or before June 15, 2023, payment by the Intercreditor AgreementSubscriber of the Subscription Amount by way of electronic money transfer in United States dollars in accordance with the wire instructions attached hereto as Schedule “H”, or such other payment method as may be agreed to by the Corporation;
(b) on or before June 15, 2023, the Subscriber having properly completed, signed and delivered this Subscription Agreement (including the Interest Election Certificate in Schedule “B” (if the Subscriber is so electing), the Canadian Accredited Investor Status Certificate in Schedule “C”, the Employee, Executive Officer, Director and Consultant Status Certificate in Schedule “D”, the LEGAL*59255427.2 Offshore Purchaser Certificate in Schedule “E”, the Accredited Investor Certificate in Schedule “F”, as applicable, including any exhibit attached thereto, as applicable) as may be directed by the Corporation;
(c) the Subscriber having executed and returned to the Corporation, at the Corporation’s request, all other documents as may be required by the Securities Laws for delivery by the Corporation on behalf of the Subscriber;
(d) the Corporation accepting the Subscriber’s subscription, in whole or in part;
(e) the Corporation having obtained all necessary approvals and consents and regulatory approvals in respect of the Offering;
(f) the issue and sale of the Convertible Debentures being exempt from the requirement to file a prospectus or registration statement and the requirement to deliver an offering memorandum under applicable Securities Laws relating to the offer and sale of the Convertible Debentures, or the Corporation having received such orders, consents or approvals as may be required to permit such sale without the requirement to file a prospectus or registration statement or to deliver an offering memorandum; and
(g) all documentation relating to the offer, sale and issuance of the Convertible Debentures being in form and substance satisfactory to the Agent, duly executed, and in full force and effect;
(b) a certificate from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party Corporation on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures advice of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of each Borrower Party;
(d) a certificate of status with respect to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the AgentFinancial Advisor.
Appears in 1 contract
Sources: Subscription Agreement for Convertible Debentures (TerrAscend Corp.)
Conditions of Closing. 8.1. Required Deliveries on The obligation of the Lenders to make the initial Revolving Loans or before the Closing Date. On or before initial Competitive Bid Loan, of the Closing Date which shall occur on or before September 1Swing Line Lender to make any Swing Line Loan, 2005, and of the Agent shall receive L/C Issuers to issue any Letter of Credit is subject to the followingconditions precedent that:
(a) the Intercreditor Administrative Agent shall have received on the Closing Date the following:
(i) executed originals of each of this Agreement, any Notes requested prior to the Closing Date and the other Loan Documents, together with all schedules and exhibits thereto;
(ii) the written opinion or opinions with respect to the Loan Documents and the transactions contemplated thereby of (A) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President & General Counsel of the Company, (B) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to the Company, and (C) Loyens & Loeffs, Luxembourg counsel for the Company, in form each case, dated the Closing Date, addressed to the Agents and substance the Lenders and satisfactory to the Administrative Agent and to Cravath, Swaine & ▇▇▇▇▇ LLP, special counsel to the Administrative Agent, duly executed, and in full force and effect;
(biii) resolutions of the board of directors or other appropriate governing body (or of the appropriate committee thereof) of each Borrower certified by its secretary or assistant secretary or any Authorized Representative as of the Closing Date, approving and adopting the Loan Documents to be executed by such Borrower and authorizing the execution and delivery thereof;
(iv) specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of each Borrower, certified by its secretary or assistant secretary or any Authorized Representative;
(v) the Organizational Documents of each Borrower certified as of a recent date by the Secretary of State or other appropriate Governmental Authority of the jurisdiction of its organization or by an Authorized Representative;
(vi) the by-laws or articles of association of each Borrower certified as of the Closing Date as true and correct by its secretary or assistant secretary or any Authorized Representative;
(vii) to the extent applicable and available in the relevant jurisdiction, a certificate issued as of a recent date by the Secretary of State or other appropriate Governmental Authority of the jurisdiction of formation of each Borrower as to the due existence and good standing of such Borrower;
(viii) notice of appointment of the initial Authorized Representative(s);
(ix) a certificate from of an Authorized Representative dated the Secretary Closing Date demonstrating compliance with the covenants contained in Sections 7.01, 7.02(j) and 7.03(f) as of each Borrower Party (i) attesting the end of the fiscal quarter for which financial statements are publicly available most recently ended prior to the resolutions Closing Date, substantially in the form of such Borrower Party's board Exhibit H hereto;
(x) a certificate of directors authorizing its executionthe Company certifying that (A) as of the Closing Date, deliveryeach of the representations and warranties set forth in Article V is true and correct in all material respects, (B) after giving effect to the Closing Date and performance of all Loan Documents required Loans to be executed and delivered by such Borrower Party made on the Closing Date, and authorizing specific officers there will be no Default or Event of such Borrower Party to execute the same Default under this Agreement, and (iiC) certifying except as disclosed in any reports or financial statements filed with the names Securities and true signatures Exchange Commission on or prior to November 7, 2011, as of the officers Closing Date there shall not have occurred a material adverse change since December 30, 2010, in the business, financial position or results of such Borrower Party authorized to sign such Loan Documentsoperations of the Company and its Subsidiaries, taken as a whole;
(cxi) copies evidence that each of the Existing Credit Agreements has been, or concurrently with the Closing Date is being, terminated (and each Borrower Party's governing of the Lenders that is a party to any such Existing Credit Agreement hereby waives any requirement of prior notice for such termination);
(xii) such other documents, instruments, certificates and opinions as amended, modified, the Administrative Agent or supplemented the Required Lenders may reasonably request on or prior to the Closing Date, certified by the Secretary of each Borrower Party;
(d) a certificate of status with respect to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority Date in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby hereby;
(xiii) Any fees required to be paid on or before the Closing Date shall have been paid, including, to the extent invoiced at least one Business Day prior to the Closing Date, all fees, charges and therebydisbursements of counsel to the Administrative Agent; and
(kxiv) The Lenders shall have received all documentation and other documents information required by bank regulatory authorities under applicable “know your customer” and legal matters in connection anti-money laundering rules and regulations, including the USA PATRIOT Act to the extent requested by such Lenders at least three Business Days prior to the Closing Date. Without limiting the generality of the provisions of Article IX, for purposes of determining compliance with the transactions contemplated by conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have been deliveredconsented to, executedapproved, accepted or recorded and shall to be in form and substance satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the AgentAdministrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Closing. 8.1. Required Deliveries on or before Lender’s agreement to make the Closing Date. On or before Loan and to disburse the Closing Date which Loan Proceeds shall occur on or before September 1, 2005, be subject to the Agent condition precedent that Lender shall receive have received all of the following:
(a) the Intercreditor Agreement, each in form and substance satisfactory to the AgentLender:
(a) This Agreement, duly executedproperly executed on behalf of Borrowers, and in full force and effect;each of the Exhibits hereto properly completed.
(b) a The Promissory Notes, properly executed on behalf of Borrowers.
(c) Each Mortgage, properly executed on behalf of the applicable Borrower.
(d) The Environmental Indemnity Agreement, properly executed on behalf of the Credit Parties.
(e) The Guaranty Agreement, properly executed on behalf of Guarantors.
(f) The Security Agreement, properly executed on behalf of Apio, Cal Ex and GreenLine Logistics.
(g) A Subordination Agreement, properly executed on behalf of Tenant.
(h) A certificate from of the Secretary or an Assistant Secretary of each Borrower Party Credit Party, certifying as to (i) attesting to the resolutions of such Borrower Party's the board of directors or consent of the members or managers of such Credit Party, authorizing its the execution, delivery, delivery and performance of all the Loan Documents required to be executed and delivered by such Borrower Party on the Closing DateDocuments, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names Organizational Documents of such Credit Party, and true (iii) the signatures of the officers or agents of such Borrower Credit Party authorized to sign execute and deliver the Borrower Documents on behalf of such Loan Documents;Credit Party.
(ci) Currently certified copies of the articles of incorporation or organization of each Borrower Credit Party's governing documents, .
(j) A Certificate of Good Standing issued as amended, modified, or supplemented to the Closing Date, certified each Credit Party by the Secretary of each Borrower Party;
(d) a certificate of status with respect to each Borrower Party, dated within ten (10) days State of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization state of such Borrower Credit Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory ’s organization not more than 30 days prior to the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; anddate hereof.
(k) all other documents Financing statements authorized by each Borrower, as debtor, and legal matters in connection naming Collateral Agent, as secured party.
(l) An environmental engineering report for the each Property prepared by an engineer engaged by Lender after consultation with the transactions contemplated by this Agreement shall have been deliveredBorrowers and at Borrowers’ expense, executed, or recorded and which environmental engineering report shall be in form and substance satisfactory acceptable to Lender.
(m) Certificates of the insurance required hereunder, containing a lender’s loss payable clause or endorsement in favor of Lender.
(n) An as built ALTA survey of each Property, in form and substance acceptable to Lender.
(o) An ALTA (or equivalent) mortgagee policy of title insurance with respect to each Property, with reinsurance and endorsements as Lender may require, containing no exceptions to title (printed or otherwise) which are unacceptable to Lender, and insuring that the related Mortgage is a first-priority lien on such Property. Without limitation, such policy shall (i) be in the ALTA 2006 form (deleting arbitration, if permissible) or, if not available, the form commonly used in the State, insuring Collateral Agent and its successors and assigns; and (ii) include the following endorsements and/or affirmative coverages: (A) ALTA 9 Comprehensive, (B) Survey, (C) Access, (D) Environmental Protection Lien, (E) Subdivision, (F) Contiguity (as applicable), (G) Tax Parcel, (H) Address and Improvement, (I) Usury, (J) Tax Sale (as applicable), (K) Doing Business, (L) First Loss, (M) Tie-In (except with respect to the Property located in Hanover, Pennsylvania), and (N) ALTA 3.1 Zoning (with additional coverage for number and type of parking spaces). Such mortgagee policies of title insurance shall be in the following amounts: (a) $14,586,000 for the Property located in California, (b) $1,904,000 for the Property located in Ohio, (c) $1,041,250 for the Property located in Pennsylvania and (d) $425,000 for the Property located in South Carolina.
(p) An appraisal of each Property addressed to Lender, in form and substance acceptable to Lender and prepared by an MAI certified appraiser acceptable to Lender in conformance with the guidelines and recommendations set forth in the Uniform Standards of Professional Appraisal Practice (USPAP) and the requirements of the Code of Professional Ethics and Standards of Professional Appraisal Practice of the Appraisal Institute.
(q) Current searches of appropriate filing offices showing that (i) no state or federal tax liens have been filed and remain in effect against any Borrower, (ii) no financing statements have been filed and remain in effect against any Borrower relating to the Collateral except those financing statements filed by Lender, and (iii) all financing statements necessary to perfect the lien on the Collateral have been filed.
(r) An opinion of counsel to Credit Parties, addressed to Lender and Collateral Agent, in form and substance acceptable to Lender.
(s) Payment of all previously documented Lender’s fees, commissions and expenses required by Section 11.01 hereof.
(t) Any other documents or items required by Lender.
Appears in 1 contract
Sources: Loan Agreement (Landec Corp \Ca\)
Conditions of Closing. 8.1. Required Deliveries (a) The obligations of the Series A Stockholders set forth in this Agreement are subject to the fulfillment or waiver, at or before the Closing, of each of the following conditions:
(i) (A) Ramtron's common stockholders shall have approved Proposals 1A and 1B at a special meeting held on July 20, 1999, in accordance with Ramtron's Notice of Special Meeting dated June 21, 1999; (B) the purchasers (the "DFA Stockholders") of Ramtron's Common Stock pursuant to Stock Purchase Agreements dated as of December 23, 1997 (the "DFA Purchase Agreements"), shall have entered into and closed, or shall enter into and close concurrently with the Closing of this Agreement, the DFA Stockholder Recapitalization Agreement with Ramtron providing for, among other matters, the termination of the DFA Purchase Agreements; (C) the holders of a majority of the shares of Series A Stock shall have approved the amendment of Ramtron's Certificate of Incorporation as provided in Section 1(a) and if such approval is by written consent of less than all Series A Stockholders, Ramtron shall have given written notice to each Series A Stockholder who has not so consented; (D) Ramtron's Board of Directors shall have approved and authorized the execution and filing with the Delaware Secretary of State of the Certificate of Amendment; and (E) NEBF and Ramtron shall have amended the Loan Agreement dated August 31, 1995, or shall have prepared and signed a separate document, to provide (among other things) for (I) NEBF's irrevocable consent to the amendment of Ramtron's Certificate of Incorporation as provided in Section 1(a), (II) the extension of the maturity date for the loan to a date not earlier than March 15, 2002, and (III) the release of certain categories of collateral pledged as security for repayment of NEBF's loan to Ramtron upon Ramtron's satisfaction of certain performance milestones.
(ii) Each of the representations and warranties of Ramtron contained in Section 4 shall be true and correct in all material respects on and as of the Closing Date with the same effect as though such representations and warranties had been made as of the Closing.
(iii) Ramtron shall have performed and complied with all agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by it on or before the Closing Date. On or before the Closing Date which and shall occur on or before September 1have obtained all approvals, 2005, the Agent shall receive the following:consents and qualifications necessary to completely perform its obligations undertaken herein.
(aiv) Ramtron shall have provided to each of the Intercreditor AgreementSeries A Stockholders or their representative a copy, in form and substance satisfactory to the Agentcertified by Ramtron's Secretary, duly executed, and in full force and effect;
(b) a certificate from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board the Board of directors authorizing its execution, delivery, Directors of Ramtron providing for the authorization and performance approval of all Loan Documents required to be executed this Agreement and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;matters mentioned in Section 3(a)(i)(D).
(cv) copies of each Borrower PartyRamtron's governing documentsCommon Stock shall be listed on The Nasdaq SmallCap Market ("Nasdaq") and trading in Ramtron's Common Stock shall not have been suspended by Nasdaq, as amended, modified, the Securities and Exchange Commission (the "SEC") or supplemented to the Closing Date, certified by the Secretary of each Borrower Party;other regulatory authority.
(dvi) No action, suit, proceeding, inquiry or investigation before or by any court, public board, governmental agency or authority shall be known to Ramtron to have been filed against or affecting Ramtron or Enhanced Memory Systems, Inc.("EMS"), a certificate of status with respect to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued Delaware corporation wholly owned by the appropriate officer of the jurisdiction of organization of the Borrower PartyRamtron, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;seeks to prevent, enjoin, alter or delay the transactions contemplated by this Agreement or which if decided adversely to Ramtron would affect the validity or enforceability of this Agreement or the Series A Stock.
(evii) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates The Series A Stockholders shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) have received an opinion of counsel for the Borrower Parties in form and substance satisfactory Company, dated as of the Closing Date, as to the Agent;matters of Delaware law set forth in Exhibit B, subject to such conditions and exceptions as are usual in such opinions.
(gb) copies The obligations of all existing Blocked Account AgreementsRamtron set forth in this Agreement are subject to the fulfillment or waiver, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) at or before the Agent shall be satisfied that financing statements filed against all Borrower Parties naming AgentClosing, for of each of the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;following conditions:
(i) (A) Ramtron's common stockholders shall have approved Proposals 1A and 1B at a special meeting held on July 20, 1999, in accordance with Ramtron's Notice of Special Meeting dated June 21, 1999; (B) the Third Amendment DFA Stockholders shall have entered into and closed, or shall enter into and close concurrently with the Closing of this Agreement, the DFA Stockholder Recapitalization Agreement with Ramtron providing for, among other matters, the termination of the DFA Purchase Agreements; (C) the holders of a majority of the shares of Series A Stock shall have approved the amendment of Ramtron's Certificate of Incorporation as provided in Section 1(a); and (D) NEBF and Ramtron shall have amended the Loan Agreement dated August 31, 1995, or shall have prepared and signed a separate document, to provide (among other things) for (I) NEBF's irrevocable consent to the First Lien Credit Agreement amendment of Ramtron's Certificate of Incorporation as provided in Section 1(a), (II) the extension of the maturity date for the loan to a date not earlier than March 15, 2002, and (III) the release of certain categories of collateral pledged as security for repayment of NEBF's loan to Ramtron upon Ramtron's satisfaction of certain performance milestones.
(ii) All legal actions of any type filed against Ramtron by any of the Series A Stockholders, or their respective transferees, affiliates, associates, stockholders, partners members and other related parties, and all legal actions of any type filed against Ramtron by any of the DFA Stockholders, or their respective affiliates, associates, stockholders, partners, members and other related parties, shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals dismissed with prejudice or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by appropriate documents to effect such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement dismissal shall have been delivereddelivered to Ramtron.
(iii) Each of the representations and warranties of the Series A Stockholders contained in Section 5 shall be true and correct in all material respects on and as of the Closing Date, executedwith the same effect as though such representations and warranties had been made as of the Closing.
(iv) The Series A Stockholders shall have performed and complied with all agreements, obligations and conditions contained in this Agreement that are required to be performed or recorded complied with by the Series A Stockholders on or before the Closing and shall be in form have obtained all approvals, consents and substance satisfactory qualifications necessary to the Agentcompletely perform their obligations undertaken herein.
Appears in 1 contract
Sources: Preferred Stock Recapitalization Agreement (Ramtron International Corp)
Conditions of Closing. 8.1. Required Deliveries on or before The Lenders shall not be required to make the Closing Date. On or before initial Credit Extension unless each of the Closing Date which shall occur on or before September 1, 2005, the following conditions is satisfied:
(a) The Administrative Agent shall receive have received executed counterparts of each of the following:
(ai) the Intercreditor this Agreement, in form and substance satisfactory to the Agent, duly executed, and in full force and effect;
(bii) any Notes requested by a Lender pursuant to Section 2.13;
(iii) a certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the Borrower, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization, since the date of the certification thereof by such governmental entity, (B) as to the bylaws, operating agreement or other organizational document, as attached thereto, of the Borrower as in effect on the date of such certification, (C) as to resolutions of the board of directors or other governing body of the Borrower authorizing the execution, delivery and performance of each Loan Document to which it is a party, (D) as to a good standing certificate (or analogous documentation if applicable) of the Borrower from the Secretary of each Borrower Party State (ior analogous governmental entity) attesting of the jurisdiction of its organization as of a recent date, to the resolutions of extent generally available in such Borrower Party's board of directors authorizing its execution, deliveryjurisdiction, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (iiE) certifying the names and true signatures of the incumbent officers of such the Borrower Party authorized to sign the Loan Documents to which it is a party, and authorized to request a Credit Extension;
(iv) a certificate, signed by an Authorized Officer of the Borrower, stating that on the Closing Date (A) no Default or Event of Default has occurred and is continuing, (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier or be qualified as to “Adverse Event”, true and correct in all respects as of such Loan Documents;date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier or are not qualified as to “Adverse Event”, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) that the conditions precedent set forth in Section 4.1(d) are satisfied as of such date; and
(v) a written opinion of the Borrower’s counsel, in form and substance acceptable to the Administrative Agent, addressed to the Lenders.
(b) the Administrative Agent shall have received evidence satisfactory to it of the payment of all interest, fees and premiums, if any, on all loans and other extensions of credit outstanding under the Existing Credit Agreement.
(c) copies The Administrative Agent’s Fee Letter and payment of each Borrower Party's governing documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of each Borrower Party;all fees and reimbursements payable hereunder and thereunder.
(d) a certificate There shall not have occurred an Adverse Event since December 31, 2023.
(e) Upon the reasonable request of status with respect to each Borrower Party, dated within any Lender made at least ten (10) days of prior to the Closing Datedate hereof, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Partyshall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and Anti-Money Laundering Laws, which certificate shall indicate that such Borrower Party is including the PATRIOT Act, in good standing in such jurisdiction;
each case at least five (e) certificates of status with respect to each Borrower Party, each dated within thirty (305) days of prior to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;date hereof.
(f) an opinion of counsel for At least five (5) days prior to the date hereof, if the Borrower Parties qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(g) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Borrower, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance reasonably satisfactory to the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Otter Tail Corp)
Conditions of Closing. 8.1. Required Deliveries on or before The obligation of the Underwriters to purchase the Initial Units at the Closing Date. On or before Time on the Closing Date which and to purchase any Additional Units at the Closing Time on an Option Closing Date shall occur on or before September 1, 2005, the Agent shall receive be subject to the following:
(a) the Intercreditor Underwriters shall have received a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one business day prior to the Closing Date from the Company and MMDC;
(b) the Underwriters shall have received a certificate from the Company, dated as of the Closing Date and addressed to the Underwriters, signed by an officer of such person with respect to the Constating Documents of the Company, all resolutions of the Company’s board of directors relating to the Offering Documents, this Agreement, the Warrant Indenture and the certificates representing the Compensation Options, and the transactions contemplated hereby and thereby, the incumbency and specimen signatures of signing officers, and such other matters as the Underwriters may reasonably request;
(c) the Underwriters shall have received a certificate from the Company, dated as of the Closing Date and addressed to the Underwriters, signed by the Co-Chief Executive Officer and the Chief Financial Officer of the Company, certifying for and on behalf of the Company, to the best of their knowledge, information and belief, that, as at the Closing Time:
(i) no order, ruling or determination having the effect of suspending the sale or ceasing the trading in the Offered Units or any other securities of the Company has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or are contemplated or threatened by any regulatory authority;
(ii) since the beginning of the current financial year of the Company, (A) there has been no adverse change (financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Company and the Subsidiaries (taken as a whole); and (B) other than as disclosed in the Offering Documents, no transaction has been entered into by the Company or any Subsidiary which is or would be material to such person other than in the ordinary course of business;
(iii) the Company has complied with all the material terms, and fulfilled the covenants and conditions of this Agreement on its part to be complied with up to the Closing Time;
(iv) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects (except for representations and warranties that are qualified as to materiality or Material Adverse Effect, which shall be true and correct in all respects) with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated by this Agreement; and
(v) the Final Receipt has been issued by the OSC for the Prospectus pursuant to the Passport System and, to the knowledge of such persons, no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Common Shares or other securities of the Company, or the Shares and Warrants to be issued and sold by the Company, has been issued and no proceedings for such purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened;
(d) the Underwriters shall have received satisfactory evidence that all requisite regulatory approvals and consents have been obtained by the Company in order to complete the Offering; and (ii) all necessary forms have been filed with the CSE to effect the listing of the Shares, the Warrants and the Compensation Shares issued upon the exercise of the Compensation Options, on the CSE, subject to the satisfaction of standard listing conditions of the CSE;
(e) the Underwriters shall have received a legal opinion addressed to the Underwriters, in the form and substance satisfactory to the AgentUnderwriters, duly executed, and in full force and effect;
(b) a certificate from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of each Borrower Party;
(d) a certificate of status with respect to each Borrower Partyacting reasonably, dated within ten (10) days as of the Closing Date, such certificate from Canadian legal counsel for the Company, which counsel, in turn may rely, only as to be issued matters of fact, on certificates of officers of the Company, as appropriate and subject to confirmation by the appropriate officer of the jurisdiction of organization of the Borrower PartyUnderwriters, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;following matters:
(i) the Third Amendment to Company is a “reporting issuer”, or its equivalent, in each of the First Lien Credit Agreement shall have been executedQualifying Jurisdictions and it is not listed as in default of Applicable Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(jii) Each Borrower Party shall the Company is a corporation duly amalgamated and validly existing under the laws of British Columbia, and has all requisite corporate power, capacity and authority to carry on its business as now conducted and to own, lease and operate its property and assets as described in the Prospectus;
(iii) as to the authorized and issued capital of the Company;
(iv) the rights, privileges, restrictions and conditions attaching to the Shares, the Warrants and the Warrant Shares are accurately summarized in all material respects in the Prospectus;
(v) the Initial Shares and Initial Warrants sold pursuant to the Offering have received been duly and validly created and authorized and are issued and are outstanding as fully paid shares or securities (as the case may be) of the Company and, in the case of the Initial Shares, are non-assessable;
(vi) the Over-Allotment Option has been duly and validly authorized and granted by the Company and the Additional Shares and Additional Warrants issuable upon the exercise of the Over-Allotment Option have been duly and validly created, allotted and reserved for issuance by the Company and, upon the exercise of the Over-Allotment Option including receipt by the Company of payment in full therefor, the Additional Shares and the Additional Warrants will be duly and validly created, authorized, issued and outstanding as fully paid shares or securities (as the case may be) and, in the case of the Additional Shares, are non-assessable;
(vii) the Warrant Shares have been duly and validly allotted and reserved for issuance and upon the exercise of the Warrants in accordance with their terms, the Warrant Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(viii) the Compensation Options have been duly created, authorized and issued by the Company;
(ix) the Compensation Shares issuable upon the exercise of the Compensation Options have been validly reserved for issuance by the Company and, upon the payment of the exercise price therefor and the issue thereof, the Compensation Shares will be validly issued as fully paid and non-assessable Common Shares
(x) the Company has all licensesnecessary corporate power and capacity: (i) to execute and deliver this Agreement, approvals or evidence the Warrant Indenture and to issue the certificates representing the Compensation Options, and to perform its obligations hereunder and thereunder; (ii) to offer, issue, sell and deliver the Initial Shares and the Initial Warrants comprising the Initial Units; (iii) to grant the Over-Allotment Option and offer, issue, sell and deliver the Additional Shares and Additional Warrants comprising the Additional Units issuable upon exercise of other actions required the Over-Allotment Option; (iv) to issue, sell and deliver the Warrant Shares upon the exercise of the Warrants; and (v) to issue and grant the Compensation Options and to issue the Compensation Shares upon the exercise of the Compensation Options;
(xi) all necessary corporate action has been taken by any Governmental Authority in connection with the Company to authorize the execution and delivery by such Borrower Party of each of the Preliminary Prospectus, the Prospectus and any Supplementary Material and the filing thereof with the Securities Commissions;
(xii) the Company has duly authorized, executed and delivered, this Agreement, the Warrant Indenture and authorized the performance of its obligations hereunder and thereunder, including the offering, creation (as applicable), issue, sale and delivery of the Initial Shares and the Initial Warrants comprising the Initial Units, the grant of the Over-Allotment Option, the offering, creation (as applicable) issue, sale and delivery of the Additional Shares and Additional Warrants comprising the Additional Units upon exercise of the Over-Allotment Option, the issue of the Compensation Options and the Compensation Shares upon the exercise of the Compensation Options, and the issue, sale and delivery of the Warrant Shares upon the exercise of the Warrants, and each of this Agreement or any other Loan Document or and the Warrant Indenture constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to appropriate qualifications that are customary of an offering of this nature;
(xiii) the execution and delivery of this Agreement and the Warrant Indenture and the fulfillment of the terms hereof and thereof, including the offering, creation (as applicable), issue, sale and delivery of the Initial Shares and the Initial Warrants comprising the Initial Units, the grant of the Over-Allotment Option, the offering, creation (as applicable) issue, sale and delivery of the Additional Shares and Additional Warrants comprising the Additional Units upon exercise of the Over- Allotment Option, the issuance and grant of the Compensation Options and the issuance of the Compensation Shares upon the exercise of the Compensation Options, and the issue, sale and delivery of the Warrant Shares upon the exercise of the Warrants, and the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall and the Warrant Indenture, do not result in a breach of (whether after notice or lapse of time or both) or constitute a default under (i) any of the terms, conditions or provisions of the articles of incorporation or amalgamation, as applicable, of the Company, or (ii) the laws of the Province of Ontario and the federal laws of Canada applicable therein;
(xiv) the form and terms of the definitive certificate representing the Common Shares and the Warrants have been deliveredapproved by the directors of the Company and comply in all material respects with the BCBCA, executedthe articles and by-laws of the Company and the rules of the CSE;
(xv) Odyssey Trust Company is the duly appointed registrar and transfer agent for the Common Shares and Restricted Voting Shares and as Warrant agent, or recorded registrar and shall be transfer agent for the Warrants;
(xvi) all necessary documents have been filed, all requisite proceedings have been taken, all approvals, permits and consents of the appropriate regulatory authority in form each Qualifying Jurisdiction have been obtained, and substance satisfactory all necessary legal requirements have been fulfilled, in order to qualify the distribution of the Initial Shares and the Initial Warrants comprising the Initial Units, the Compensation Options, the Over- Allotment Option and the Additional Shares and the Additional Warrants comprising the Additional Units in each of the Qualifying Jurisdictions through dealers who are registered under Applicable Securities Laws and who have complied with the relevant provisions of such Applicable Laws;
(xvii) the issuance by the Company of (i) the Warrant Shares in accordance with and pursuant to the Agent.terms and conditions of the Warrants and the Warrant Indenture; and (ii) the Compensation Shares upon the exercise of the Compensation Options, is exempt from the prospectus requirements of the Applicable Securities Laws in the Qualifying Jurisdictions and no prospectus or other document is required to be filed, no proceeding is required to be taken and no approval, permit or consent of the Securities Commissions is required to be obtained by the Company under the Applicable Securities Laws in the Qualifying Jurisdictions to permit such issuance of the Warrant Shares and the Compensation Shares;
(xviii) the first trade in Warrant Shares underlying the Warrants and the Compensation Shares underlying the Compensation Options is exempt from the prospectus requirements of the Applicable Securities Laws in the Qualifying Jurisdictions and no prospectus or other document is required to be filed, no proceeding is required to be taken and no approval, permit, consent or authorization of regulatory authorities is required to be obtained by the Company under Applicable Securities Laws of the Qualifying Jurisdictions to permit such trade through registrants registered under Applicable Securities Laws who have complied with such laws and the terms and conditions of their registration, provided that (i) such trade is not a “control distribution” as that term is defined in National Instrument 45-102 – Resale of Securities at the time of such trade, (ii) the Company is a reporting issuer (as defined under Applicable Securities Laws) at the time of such first trade, and
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. 8.1. Required Deliveries on or before The effectiveness of this Agreement is subject to the Closing Date. On or before the Closing Date which shall occur on or before September 1, 2005, the Agent shall receive the followingfollowing conditions precedent:
(a) The Global Agent shall have received, on the Intercreditor Agreement, Closing Date in form and substance satisfactory to the Agents and the Lenders the following:
(i) executed originals of each of this Agreement, each Note requested by any Lender, the Guaranty, the LC Account Agreement, the Bank Guarantee Cash Account Agreement and the other Loan Documents, together with all schedules and exhibits thereto in form and substance satisfactory to the Agents and the Lenders;
(ii) the favorable written opinion of special U.S. counsel to the Company as US Facility Borrower and Guarantor and to each other Borrower substantially in the form of EXHIBIT G-1 and the favorable written opinion of special New York counsel to the Company as US Facility Borrower and Guarantor and to each other Borrower substantially in the form of EXHIBIT G-2, each dated the Closing Date, addressed to the Agents and the Lenders and satisfactory to special counsel to the Global Agent;
(iii) resolutions of the board of directors (or of the appropriate committee thereof) of each of the Borrowers certified by its secretary or assistant secretary as of the Closing Date, duly executedapproving and adopting the Loan Documents to be executed by such Borrower, and authorizing the execution and delivery thereof; specimen signatures of officers of each Borrower executing the Loan Documents, certified by the Secretary or Assistant Secretary of such Borrower;
(iv) a certificate of the secretary or assistant secretary of each Borrower as to the absence of any change to the Organizational Documents of each of the Borrowers since the date of the Existing Credit Agreement and that such Organizational Documents remain in full force and effect;
(b) a certificate from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of each Borrower Party;
(dv) a certificate of status with respect to the secretary or assistant secretary of each Borrower Party, dated within ten (10) days as to the absence of any change to the Operating Documents of each of the Closing Date, such certificate to be issued by Borrowers since the appropriate officer date of the jurisdiction of organization of the Borrower Party, which certificate shall indicate Existing Credit Agreement and that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are Operating Documents remain in full force and effect;
(hvi) certificates issued as of a recent date by the Agent shall be satisfied that financing statements filed against Secretary of State or comparable official of the jurisdiction of the formation of each of the Borrowers as to the corporate good standing of such Borrower therein; 110 117
(vii) all Borrower Parties naming Agent, for fees payable by the benefit of Borrowers on the Closing Date to the Agents and the Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(iviii) financial statements of the Third Amendment Borrower and its Subsidiaries required to be delivered pursuant to SECTION 8.02(b)(i) hereof if not previously delivered to the First Lien Lenders pursuant to the Existing Credit Agreement shall have been executedAgreement;
(jix) Each Borrower Party shall have received all licensesa certificate of an Authorized Representative of the Company reasonably satisfactory to the Agents and the Lenders as to the matters set forth in SECTION 7.01(b)(ii) through (iv) and 7.01(c)(i); and
(x) such other documents, approvals instruments, certificates and opinions as any Agent or evidence of other actions required by any Governmental Authority Lender may reasonably request on or prior to the Closing Date in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby;
(b) Each of the following shall have occurred or be true:
(i) The Global Agent shall have completed all due diligence with respect to the Company and its Subsidiaries in scope and determination satisfactory to the Global Agent in its sole discretion;
(ii) There shall not be any action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that (a) purports to affect the transactions contemplated hereby, (b) would reasonably be expected to have a Material Adverse Effect or (c) would reasonably be expected to have a material adverse effect on the ability of the Loan Parties to perform their respective obligations hereunder or under the other Loan Documents;
(iii) The Company and its Subsidiaries shall be in compliance with all existing financial and material contractual obligations before and immediately after giving effect to the financings and other transactions contemplated hereby;
(iv) The Company and its Subsidiaries shall have received all government, shareholder and third-party approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any applicable law, rule, regulation, order or decree of any court or other Governmental Authority or arbitral authority, (B) any Organizational Document or Operating Agreements of the Company or any Subsidiary or (C) any agreement, document or instrument to which any of the Company or any Subsidiary is a party or by which any of them or their properties is bound, if such default, conflict or violation would reasonably be expected to result in a Material Adverse Effect; and therebyall applicable waiting periods shall have expired without any action being taken or threatened in writing by any authority that could restrain, prevent or impose any material adverse conditions on the making of any Loan or other transactions contemplated hereby, and no law or regulation shall be applicable which would reasonably be expected to have a Material Adverse Effect; and
(kc) all other documents In the good faith judgment of the Agents and legal matters the Lenders:
(i) There shall not have occurred a material adverse change in connection with the transactions contemplated by this Agreement shall have been deliveredbusiness, executedassets, liabilities, operations, condition (financial or otherwise) or prospects of the Company and its Subsidiaries taken as a whole since February 29, 2000, except as communicated to the Lenders and the Agents prior to the date hereof, or recorded and shall be in form and substance satisfactory the facts or information regarding such entities most recently delivered to the AgentGlobal Agent by the Company or any Borrower;
(ii) There shall not have occurred and be continuing a material adverse change in the market for syndicated credit facilities similar in nature to the Facilities or a material disruption of, or a material adverse change in, financial, banking or capital market conditions, in each case as determined by the Global Agent in its reasonable discretion.
Appears in 1 contract
Conditions of Closing. 8.1. Required Deliveries The obligation of each Lender to make its Loans on or before the Closing Date. On or before the Closing Date (if applicable) shall not become effective, and the Closing Date shall not occur, until the date on which shall occur on or before September 1, 2005, each of the Agent shall receive following conditions is satisfied:
(a) The Administrative Agent’s receipt of the following:
(ai) the Intercreditor Agreement, in form and substance either (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence satisfactory to the Agent, duly executed, and Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement:
(ii) a Note executed by the Borrower in full force and effectfavor of each Lender requesting a Note at least two Business Days prior to the Closing Date;
(biii) a certificate from such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Secretary Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party Responsible Officer thereof authorized to sign such act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(civ) copies such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly incorporated, and that the Borrower is validly existing and in good standing in the State of each Borrower Party's governing documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of each Borrower PartyDelaware;
(dv) a certificate favorable written opinion of status with respect Skadden, Arps, Slate ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Borrower, addressed to the Administrative Agent and each Borrower Party, Lender and dated within ten (10) days as of the Closing Date, covering such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory matters relating to the Agent;
(g) copies of all existing Blocked Account AgreementsBorrower, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with incident to the transactions contemplated by this Agreement as the Administrative Agent may reasonably require;
(vi) a certificate signed by a Responsible Officer of the Borrower (on behalf of the Borrower) certifying that the conditions specified in Sections 4.02(a) and (b) have been satisfied; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(i) The Administrative Agent and the Lenders shall have received, at least five Business Days prior to the Closing Date, all documentation and other information as is reasonably requested by the Administrative Agent or the Lenders about the Borrower and required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five Business Days prior to the Closing Date, any Lender that has requested Beneficial Ownership Certifications in relation to the Borrower shall have received such Beneficial Ownership Certifications.
(c) The Administrative Agent shall have received all fees and other amounts due and payable by the Borrower in connection with this Agreement on or prior to the Closing Date, including, to the extent invoiced at least two Business Days prior to the Closing Date, reimbursement or payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(d) The Existing Credit and Guarantee Agreement shall have been deliveredterminated and all amounts thereunder have been paid in full, executedin each case substantially concurrently with the Closing Date. Without limiting the generality of the provisions of Section 9.04, or recorded for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement (and each such Lender’s Affiliates, successors and/or assigns) shall be in form and substance deemed to (i) have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the AgentAdministrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto and (ii) have waived the notice requirement for termination of the commitments under the Existing Credit and Guarantee Agreement as set forth in section 2.04 of the Existing Credit and Guarantee Agreement.
Appears in 1 contract
Conditions of Closing. 8.1. Required Deliveries on The obligation of the Lenders to make the initial Advance under the Revolving Credit Facility or before an initial Competitive Bid Loan, of the Closing Date. On or before Swing Line Lender to make any Swing Line Loan, and of the Closing Date which shall occur on or before September 1, 2005, L/C Issuers to issue any Letter of Credit is subject to the Agent shall receive the followingconditions precedent that:
(a) the Intercreditor AgreementAgent shall have received on the Closing Date, in form and substance satisfactory to the AgentAgent and Lenders, duly executedthe following:
(i) executed originals of each of this Agreement, the Notes and in full force the other Loan Documents, together with all schedules and effectexhibits thereto;
(bii) a certificate from the Secretary of each Borrower Party (i) attesting favorable written opinion or opinions with respect to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required and the transactions contemplated thereby of special counsel to be executed and delivered by such the Borrower Party on dated the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented addressed to the Closing DateAgent and the Lenders and satisfactory to the Agent and to H▇▇▇▇ Mulliss & Wicker, certified by the Secretary of each Borrower Party;
(d) a certificate of status with respect to each Borrower PartyPLLC, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of special counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(giii) copies resolutions of all existing Blocked Account Agreementsthe boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower certified by its secretary or assistant secretary as of the Closing Date, approving and adopting the Loan Documents to be executed by the Borrower, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with authorizing the execution and delivery thereof;
(iv) specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower, certified by the secretary or assistant secretary of the Borrower;
(v) the Organizational Documents of the Borrower certified as of a recent date by the Secretary of State of its state of organization;
(vi) the by-laws of the Borrower certified as of the Closing Date as true and correct by its secretary or assistant secretary;
(vii) a certificate issued as of a recent date by the Secretary of State of the jurisdiction of formation of the Borrower as to the due existence and good standing of such the Borrower;
(viii) notice of appointment of the initial Authorized Representative(s);
(ix) a certificate of an Authorized Representative dated the Closing Date demonstrating compliance with the covenants contained in Sections 8.1, 8.2(i), and 8.3(e) as of the end of the fiscal quarter for which financial statements are publicly available most recently ended prior to the Closing Date, substantially in the form of Exhibit G;
(x) an initial Borrowing Notice, if any, and, if elected by the Borrower, Interest Rate Selection Notice;
(xi) evidence that all fees payable by the Borrower Party on the Closing Date to the Agent, BAS and the Lenders have been paid in full;
(xii) a certificate of the Borrower certifying that (A) as of the Closing Date, each of the representations and warranties set forth in Article VI is true and correct, (B) after giving effect to the Closing Date and all Loans to be made and Letters of Credit to be issued on the Closing Date, there will be no Default or Event of Default under this Agreement Agreement, and (C) except as disclosed in any reports or financial statements filed with the Securities and Exchange Commission prior to August 20, 2003, as of the Closing Date there shall not have occurred a material adverse change since January 4, 2003 in the business, financial position, results of operations or prospects of the Borrower and its Subsidiaries, taken as a whole; and
(xiii) such other documents, instruments, certificates and opinions as the Agent or any other Loan Document Lender may reasonably request on or prior to the Closing Date in connection with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the Agenthereby.
Appears in 1 contract
Sources: Credit Agreement (V F Corp)
Conditions of Closing. 8.16.1 All obligations of the Company under this Agreement are subject to the fulfillment, at or prior to the Closing Date, of the following conditions: EXHIBIT 10.0
(a) the representations and warranties of the Seller in this Agreement or in any Attachment hereto or certificate or other document delivered to the Company pursuant hereto shall be true and correct as of the Closing Date;
(b) the Seller will have made the closing deliveries contemplated by this Agreement;
(c) at the Closing Date there shall have been no materially adverse change to the Seller's Shares or the Assets;
(d) the Seller will have obtained any consents and approvals which are required to transfer the Seller's Shares to the Company in accordance with the terms and conditions of this Agreement.
(e) For the two-year period after the Closing Date, there shall be no reverse split, consolidation or combination of the outstanding common shares or any reorganization, recapitalization, merger or other action whatsoever that has the effect of changing the number of outstanding common shares into a smaller number of common shares (the "Reverse Split"), whether by action of the Board of Directors or shareholders or by consent, of the Company or any successor company. Required Deliveries In the event that this covenant is breached, the breach shall trigger a grant by the Company of an immediate mandatory dividend to each shareholder of record as of the Closing Date, for each share owned after the Reverse Split, of a number of shares inversely proportional to the amount of the Reverse Split. This provision shall be adopted as a "poison pill" resolution by the Board of Directors concurrent with Closing and shall be irrevocable.
(f) As soon as practicable after the Closing Date, the Company shall effect a forward split in its outstanding common shares on or before the basis of two shares for each one share outstanding on the record date. In the event that this covenant is breached, the breach shall trigger a grant by the Company of an immediate mandatory dividend to each shareholder of record as of the Closing Date of two shares for each one share owned on the Closing Date. On or before This provision shall be adopted as a resolution by the Board of Directors concurrent with Closing and shall be irrevocable.
6.2 The obligation of the Seller to transfer the Seller's Shares to the Company on the Closing Date which shall occur on is subject to the fulfillment, at or before September 1prior to the Closing Date, 2005, of the Agent shall receive the followingfollowing conditions:
(a) the Intercreditor Agreement, representations and warranties of the Company in form this Agreement or in any Attachment hereto or certificate or other document delivered by the Company pursuant hereto shall be true and substance satisfactory to correct as of the Agent, duly executed, and in full force and effectClosing Date;
(b) a certificate from the Secretary of each Borrower Party (i) attesting Company shall have completed or be able to complete on the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents Closing Date those acts required to be executed and delivered by such Borrower Party have been done in contemplation of closing as set out in this Agreement prior to or on the Closing Date, and authorizing specific officers of such Borrower Party to execute . EXHIBIT 10.0
6.3 In the same and (ii) certifying the names and true signatures event any of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, foregoing conditions contained in Section 6.1 hereof are not fulfilled or supplemented to performed at or before the Closing Date, certified by the Secretary Company will not be obligated to transfer the Purchase Shares to the Seller on the Closing Date.
6.4 In the event any of each Borrower Party;
(d) a certificate of status with respect to each Borrower Party, dated within ten (10) days of the foregoing conditions contained in Section 6.2 hereof are not fulfilled or performed at or before the Closing Date, such certificate the Seller will not be obligated to be issued by transfer the appropriate officer of Seller's Shares to the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of Company on the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the Agent.
Appears in 1 contract
Sources: Share Purchase Agreement (Savoy Capital Investments Inc)
Conditions of Closing. 8.1. Required Deliveries on or before the Closing Date. On or before The obligation of each Lender to make its initial Loan and of each Issuing Bank to issue any Letters of Credit hereunder shall not become effective, and the Closing Date shall not occur, until the date on which shall occur on or before September 1, 2005, each of the Agent shall receive the followingfollowing conditions is satisfied:
(a) The Administrative Agent’s receipt of the Intercreditor Agreementfollowing, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower and the Subsidiary Guarantor, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, duly executed, each Lender and in full force and effectthe Borrower;
(bii) a certificate from Note executed by the Secretary Borrower in favor of each Borrower Party Lender requesting a Note;
(iiii) attesting to the such certificates of resolutions or other action, incumbency certificates and/or other certificates of such Borrower Party's board Responsible Officers of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures each of the officers Borrower and the Subsidiary Guarantor as the Administrative Agent may require evidencing the identity, authority and capacity of such Borrower Party each Responsible Officer thereof authorized to sign such act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(civ) copies such documents and certifications as the Administrative Agent may reasonably require to evidence that each of the Borrower and the Subsidiary Guarantor is duly organized, and that each of the Borrower Party's governing documentsand the Subsidiary Guarantor is validly existing, as amended, modified, or supplemented in good standing and qualified to engage in business in the Closing Date, certified by the Secretary States of each Borrower PartyDelaware and California;
(dv) a certificate favorable written opinion of status with respect Sidley Austin LLP, counsel to the Borrower and the Subsidiary Guarantor, addressed to the Administrative Agent and each Borrower Party, Lender and dated within ten (10) days as of the Closing Date, covering such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory matters relating to the Agent;
(g) copies of all existing Blocked Account AgreementsBorrower, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming AgentSubsidiary Guarantor, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with incident to the transactions contemplated by this Agreement as the Administrative Agent may reasonably require;
(vi) a certificate signed by a Responsible Officer of the Borrower (on behalf of the Borrower) certifying that the conditions specified in Sections 4.02(a) and (b) have been satisfied; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been delivered, executed, paid.
(c) The Spin-off shall have been consummated prior to or recorded and shall be consummated substantially contemporaneously with the Closing Date.
(d) The Administrative Agent and the Lenders shall have received all documentation and other information as is reasonably requested by the Administrative Agent or the Lenders about the Loan Parties and required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in form this Section 4.01, each Lender and substance Issuing Bank that has signed this Agreement (and each such Lender’s or Issuing Bank’s Affiliates, successors and/or assigns) shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender and Issuing Bank unless the AgentAdministrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit and Guarantee Agreement (PayPal Holdings, Inc.)
Conditions of Closing. 8.1. Required Deliveries on or before the Closing Date. On or before The obligation of each Lender to make Loans hereunder shall not become effective, and the Closing Date shall not occur, until the date on which shall occur on or before September 1, 2005, each of the Agent shall receive following conditions is satisfied:
(a) The Administrative Agent’s receipt of the following:
(ai) either (i) a counterpart of this Agreement signed on behalf of each party hereto (including each Lender under the Intercreditor Existing Credit Agreement, in form and substance ) or (ii) written evidence satisfactory to the Agent, duly executed, and in full force and effectAdministrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(bii) a certificate from Note executed by the Secretary Borrower in favor of each Borrower Party (i) attesting Lender requesting a Note at least two Business Days prior to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date;
(iii) such certificates of resolutions or other action, and authorizing specific officers incumbency certificates and/or other certificates of such Borrower Party to execute the same and (ii) certifying the names and true signatures Responsible Officers of each of the officers Borrower and the Subsidiary Guarantor as the Administrative Agent may require evidencing the identity, authority and capacity of such Borrower Party each Responsible Officer thereof authorized to sign such act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(civ) copies such documents and certifications as the Administrative Agent may reasonably require to evidence that each of the Borrower and the Subsidiary Guarantor is duly organized, and that each of the Borrower Party's governing documents, as amended, modified, or supplemented to and the Closing Date, certified by Subsidiary Guarantor is validly existing and in good standing in the Secretary State of each Borrower PartyDelaware;
(dv) a certificate favorable written opinion of status with respect Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Borrower and the Subsidiary Guarantor, addressed to the Administrative Agent and each Borrower Party, Lender and dated within ten (10) days as of the Closing Date, covering such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory matters relating to the Agent;
(g) copies of all existing Blocked Account AgreementsBorrower, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming AgentSubsidiary Guarantor, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with incident to the transactions contemplated by this Agreement as the Administrative Agent may reasonably require;
(vi) a certificate signed by a Responsible Officer of the Borrower (on behalf of the Borrower) certifying that the conditions specified in Sections 4.02(a) and (b) have been satisfied; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid by the Borrower in connection with the Loan Documents on or before the Closing Date shall have been deliveredpaid.
(c) The Administrative Agent and the Lenders shall have received all documentation and other information as is reasonably requested by the Administrative Agent or the Lenders about the Loan Parties and required by regulatory authorities under applicable “know your customer”, executedbeneficial ownership and anti-money laundering rules and regulations, or recorded including the Patriot Act. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement (and each such Lender’s Affiliates, successors and/or assigns) shall be in form and substance deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the AgentAdministrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: 364 Day Credit and Guarantee Agreement (PayPal Holdings, Inc.)
Conditions of Closing. 8.1. Required Deliveries on or before The effectiveness of this Agreement and the Closing Date. On or before occurrence of the Closing Date which shall occur on or before September 1, 2005, are subject to the Agent shall receive following conditions precedent:
(a) The Administrative Agent’s receipt of each of the following:
(ai) executed counterparts of this Agreement and the Intercreditor AgreementFacility Guaranty;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note at least five (5) Business Days prior to the Closing Date;
(iii) such customary certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in its jurisdiction of organization, including certified copies of such Loan Parties’ Organization Documents, certificates of good standing and/or qualification to engage in business;
(v) a favorable opinion of (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel to the Borrower as to matters of New York and United States Law and (ii) in-house counsel of the Borrower as to matters of Florida Law, in each case, addressed to the Administrative Agent and the Lenders and dated as of the Closing Date, in form and substance satisfactory to the AgentAdministrative Agent and its legal counsel; and
(vi) a certificate signed by a Responsible Officer of the Borrower dated as of the Closing Date certifying (A) that the conditions specified in Sections 5.02(a) and (b) have been satisfied, duly executed(B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and in full force (C) the Borrower has paid, or will promptly pay to the extent invoiced and effectdue and payable, all required documentary stamp taxes, intangible taxes and other taxes and fees imposed upon the execution, filing and/or or recording of the Credit Agreement and other Loan Documents;
(b) a certificate from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, Any fees and performance of all Loan Documents expenses required to be executed and delivered by such Borrower Party paid on or before the Closing DateDate shall have been paid, and authorizing specific officers of such Borrower Party to execute including those set forth in the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;Fee Letter.
(c) copies Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of each the Administrative Agent to the extent invoiced at least two Business Days prior to the Closing Date; provided that such payment shall not thereafter preclude a final settling of accounts between the Borrower Party's governing documentsand the Administrative Agent and shall not relieve the Borrower of its obligation to pay or reimburse the Administrative Agent for any additional Attorney Costs in accordance with Section 11.04.
(d) The Administrative Agent shall have received satisfactory evidence that all obligations owing under the Existing Credit Agreement, as amendedand any liens thereunder (if any), modifiedshall have been, or supplemented concurrently with the date hereof will be, repaid, and the commitments thereunder terminated.
(e) To the extent requested by the Arrangers or any Lender on or prior to the date that is ten Business Days prior to the Closing Date, certified by the Secretary of each Borrower Party;
(d) a certificate of status with respect Arrangers shall have received, at least three Business Days prior to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;PATRIOT Act.
(f) an opinion The Borrower shall have delivered written notice to the Administrative Agent that upon the effectiveness of counsel this Agreement, the Kohler Acquisition Closing Date Borrowing contemplated by this Agreement will constitute a “Qualifying Revolving Facility” for purposes of the Borrower Parties Bridge Facility. Without limiting the generality of the provisions of Section 10.04, for purposes of determining compliance with the conditions specified in form and substance this Section 5.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Administrative Agent shall have received searches reflecting the filing of all notice from such financing statements;
(i) the Third Amendment Lender prior to the First Lien Credit Agreement proposed Closing Date specifying its objection thereto. Promptly upon the occurrence thereof, the Administrative Agent shall have been executed;
(j) Each notify the Borrower Party shall have received all licensesand the Lenders that the Closing Date has occurred, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and notice shall be in form conclusive and substance satisfactory to binding on the AgentBorrower and the Lenders.
Appears in 1 contract
Conditions of Closing. 8.1. Required Deliveries on or before The closing of the Closing Date. On or before credit facilities under this Agreement is subject to satisfaction of the Closing Date which shall occur on or before September 1, 2005, the Agent shall receive the followingfollowing conditions precedent:
(a) Unless waived by all the Intercreditor AgreementLenders (or by the Administrative Agent with respect to immaterial matters or items specified in clause (iv), (v) or (xi) below with respect to which the Borrower has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement and the Facility Guaranty, sufficient in number for distribution to the Administrative Agent, duly executed, each Lender and in full force and effectthe Borrower;
(bii) Notes executed by the Borrower in favor of each Lender requesting such a Note, each in a principal amount equal to such Lender's Commitment;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the signing Loan Party as the Administrative Agent may require to evidence the identities of and the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is organized and in which its chief executive office is located, including certified copies of each Loan Parties' Organization Documents, certificates of good standing and/or qualification to engage in business;
(v) a certificate from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered signed by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of each Borrower Party;
(d) a certificate of status with respect to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization Responsible Officer of the Borrower Partycertifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, which certificate shall indicate (B) that there is no event, circumstance, action, suit, investigation or proceeding pending or, to the best knowledge of such Borrower Party is Responsible Officer, threatened in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days any court or before any arbitrator or Governmental Authority since date of the Closing Date, such certificates Audited Financial Statements which has or could be reasonably expected to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute have a Material Adverse Effect, which certificates shall indicate that such Borrower Party is (C) the current Debt Ratings (and including a copy thereof), and (D) as to the matters described in good standing in such jurisdictionsSection 4.01(d);
(fvi) an opinion or opinions of counsel for the Borrower Parties to each Loan Party in form and substance satisfactory to the Administrative Agent;
(gvii) copies the consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended 1999, 2000 and 2001, including balance sheets, income and cash flow statements, all existing Blocked Account Agreementsaudited and opined on by independent certified public accountants of recognized national standing and prepared in conformity with GAAP, and such other financial information as the Administrative Agent shall be satisfied that all such agreements are in full force and effectmay request;
(hviii) evidence that the Existing Credit Facility has been or concurrently with the Closing Date is being terminated, all indebtedness and obligations of the Borrower incurred thereunder have been, or with the initial Credit Extension hereunder on the Closing Date will be, repaid and the Borrower released from all liability thereunder except such as by their express terms survive such repayment and termination;
(ix) the Multi-Year Revolving Credit Agreement has been executed and delivered by all parties thereto and the conditions set forth in Sections 4.01 and 4.02 thereof as of the Closing Date have been satisfied or waived in accordance with its terms;
(x) a Compliance Certificate signed by a Responsible Officer of the Borrower dated as of the Closing Date demonstrating compliance with the financial covenants contained in Section 7.10 as of the end of the fiscal quarter most recently ended prior to the Closing Date;
(xi) evidence of all insurance required by the Loan Documents;
(xii) an initial Loan Notice;
(xiii) evidence of the current Debt Ratings; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall be satisfied that financing statements filed against all Borrower Parties naming have been paid.
(c) Unless waived by the Administrative Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent Borrower shall have received searches reflecting paid all Attorney Costs of the filing Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of all Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such financing statements;estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) In the good faith judgment of the Administrative Agent and the Lenders:
(i) the Third Amendment there shall not have occurred or become known to the First Lien Credit Agreement shall have been executedAdministrative Agent or the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Administrative Agent prior to the Closing Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(jii) Each no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be likely to result in a Material Adverse Effect; and
(iii) the Borrower Party shall have received all licensesapprovals, approvals consents and waivers, and shall have made or evidence of other actions given all necessary filings and notices as shall be required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of to consummate the transactions contemplated hereby and thereby; and
without the occurrence of any default under, conflict with or violation of (kA) all other documents and legal matters in connection with any applicable law, rule, regulation, order or decree of any Governmental Authority or arbitral authority or (B) any agreement, document or instrument to which the transactions contemplated Borrower or any Subsidiary is a party or by this Agreement shall have been delivered, executed, which any of them or recorded and shall be in form and substance satisfactory to the Agenttheir properties is bound.
Appears in 1 contract
Conditions of Closing. (a) The Subscriber acknowledges and agrees that the Corporation may provide the Securities Regulators with a list setting forth the identities of the beneficial purchasers under the Offering together with other personal information, as described in section 8.1. Required Deliveries .
(b) The Subscriber acknowledges and agrees that the obligations of the Corporation hereunder are conditional on or before the accuracy of the representations and warranties of the Subscriber contained in this Subscription Agreement as of the date of this Subscription Agreement, and as of the Closing Date. On Time as if made at and as of the Closing Time, and, unless other arrangements acceptable to the Corporation have been made, payment by the Subscriber of the Subscription Amount by certified cheque or before bank draft payable to Loeb & Loeb LLP in Trust (“Loeb”) at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ or by wire transfer, as detailed below, as soon as possible and in any event not later than the Business Day first preceding the Closing Date which shall occur or at the Closing.
1. Beneficiary’s Detail: Beneficiary’s Bank Name & Address: Address: Citigroup Private Bank ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ Swift Code: TCITIUS33 2. Beneficiary’s Name & Address: Loeb & Loeb LLP ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ Account Name: Loeb & Loeb LLP – Trust Account Account Number: ▇▇▇▇▇▇▇▇ Routing /ABA Number: ▇▇▇▇▇▇▇▇▇
(c) The Subscriber acknowledges and agrees that the obligations of the Corporation hereunder are also conditional on or before September 1, 2005, the Agent shall receive the following:
(ai) the Intercreditor AgreementCorporation accepting the Subscriber’s subscription, in form and substance satisfactory to the Agent, duly executed, and whole or in full force and effectpart;
(bii) a certificate the offer, sale and issuance of the Subscribed Units being exempt from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, prospectus and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures registration requirements of the officers of such Borrower Party authorized to sign such Loan DocumentsSecurities Laws;
(ciii) copies of each Borrower Party's governing documentsthe Subscriber having properly completed, as amended, modified, or supplemented signed and delivered this Subscription Agreement to the Closing DateCorporation, certified by the Secretary of each Borrower Partywith a copy to SKSP;
(d) a certificate The Corporation acknowledges and agrees that the obligations of status with respect to each Borrower Party, dated within ten (10) days the Subscriber hereunder are conditional on the accuracy of the representations and warranties of the Corporation contained in this Subscription Agreement as of the date of this Subscription Agreement and as of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days Time as if made at and as of the Closing Date, such certificates to be issued Time and the fulfillment of the following additional conditions as soon as possible and in any event not later than the Closing Time unless waived by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;Subscriber:
(i) all covenants, agreements and conditions contained in this Subscription Agreement to be performed by the Third Amendment Corporation on or prior to the First Lien Credit Agreement Closing Date shall have been executed;
(j) Each Borrower Party shall have received performed or complied with in all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and therebymaterial respects; and
(kii) all the Corporation shall have delivered to the Subscriber the following items:
(1) certificates representing the Unit Securities purchased by the Subscriber registered in the name of the Subscriber or its nominee;
(2) a copy of this Subscription Agreement duly executed by the Corporation; and
(3) such other documents and legal matters in connection with relating to the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the AgentSubscription Agreement.
Appears in 1 contract
Conditions of Closing. 8.1. The obligation of each Lender to make its initial Loan hereunder shall not become effective, and the Closing Date shall not occur, until the date on which each of the following conditions is satisfied:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized, and that the Borrower is validly existing, in good standing and qualified to engage in business in the States of Delaware and California;
(v) a favorable opinion of C▇▇▇▇▇ Godward Kronish LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit E;
(vi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower (on behalf of the Borrower) certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements, subject to the SEC Reports, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on September 30, 2006, signed by a Responsible Officer of the Borrower (on behalf of the Borrower); and
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Deliveries Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date. On or before Date shall have been paid.
(c) Unless waived by the Closing Date which shall occur on or before September 1, 2005Administrative Agent, the Agent Borrower shall receive the following:
(a) the Intercreditor Agreementhave paid all fees, in form charges and substance satisfactory disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent, duly executed, and in full force and effect;
(b) a certificate from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required extent invoiced prior to be executed and delivered by such Borrower Party or on the Closing Date, and authorizing specific officers plus such additional amounts of such Borrower Party to execute the same fees, charges and (ii) certifying the names and true signatures of the officers disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented to and the Closing Date, certified by the Secretary of each Borrower Party;Administrative Agent).
(d) a certificate of status with respect to each Borrower PartyThe Closing Date shall have occurred on or before November 30, dated within ten (10) days 2006. Without limiting the generality of the Closing Dateprovisions of Section 9.04, such certificate for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Partysatisfied with, each dated within thirty (30) days of the Closing Date, such certificates document or other matter required thereunder to be issued consented to or approved by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance acceptable or satisfactory to a Lender unless the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Administrative Agent shall have received searches reflecting the filing of all notice from such financing statements;
(i) the Third Amendment Lender prior to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the Agentproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Ebay Inc)
Conditions of Closing. 8.1. Required Deliveries on or before The obligation of the Closing Date. On or before Lenders to make the Closing Date which shall occur on or before September 1, 2005, initial Loans requested to be made by it is subject to the Agent shall receive the followingconditions precedent that:
(a) the Intercreditor AgreementAgent shall have received on the Closing Date, in form and substance satisfactory to the Agent, duly executedthe following:
(i) executed originals of each of this Agreement, any Notes requested prior to the Closing Date and in full force the other Loan Documents, together with all schedules and effectexhibits thereto;
(bii) a certificate from the Secretary favorable written opinion or opinions with respect to the Loan Documents and the transactions contemplated thereby of each Borrower Party (i) attesting C▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President & General Counsel of the Borrower and (ii) D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, special counsel to the resolutions of such Borrower Party's board of directors authorizing its executionBorrower, deliveryin each case, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on dated the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented addressed to the Closing DateAgent and the Lenders and satisfactory to the Agent and to Shearman & Sterling LLP, certified by the Secretary of each Borrower Party;
(d) a certificate of status with respect to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of special counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(giii) copies resolutions of all existing Blocked Account Agreementsthe board of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower certified by its secretary or assistant secretary or any Authorized Representative as of the Closing Date, approving and Agent shall adopting the Loan Documents to be satisfied that all such agreements are in full force executed by the Borrower and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with authorizing the execution and delivery thereof;
(iv) specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower, certified by such Borrower Party of this Agreement the secretary or assistant secretary or any Authorized Representative;
(v) the Organizational Documents of the Borrower certified as of a recent date by the Secretary of State or other Loan Document appropriate Governmental Authority of the jurisdiction of its organization or by an Authorized Representative;
(vi) the by-laws or articles of association of the Borrower certified as of the Closing Date as true and correct by its secretary or assistant secretary or any Authorized Representative;
(vii) to the extent applicable and available in the relevant jurisdiction, a certificate issued as of a recent date by the Secretary of State or other appropriate Governmental Authority of the jurisdiction of formation of the Borrower as to the due existence and good standing of the Borrower;
(viii) notice of appointment of the initial Authorized Representative;
(ix) a certificate of an Authorized Representative dated the Closing Date demonstrating compliance with the covenants contained in Sections 8.1, 8.2(i) and 8.3(e) as of the end of the fiscal quarter for which financial statements are publicly available most recently ended prior to the Closing Date, substantially in the form of Exhibit G;
(x) a certificate of the Borrower certifying that (A) as of the Closing Date, each of the representations and warranties set forth in Article VI is true and correct, (B) after giving effect to the Closing Date and all Loans to be made on the Closing Date, there will be no Default or Event of Default under this Agreement, and (C) except as disclosed in any reports or financial statements filed with the Securities and Exchange Commission on or prior to August 7, 2007, as of the Closing Date there shall not have occurred a material adverse change since December 30, 2006 in the business, financial position or results of operations of the Borrower and its Subsidiaries, taken as a whole; and
(xi) such other documents, instruments, certificates and opinions as the Agent or any Lender may reasonably request on or prior to the Closing Date in connection with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the Agenthereby.
Appears in 1 contract
Sources: Credit Agreement (V F Corp)
Conditions of Closing. 8.1. Required Deliveries on Prior to the funding of the Loan, Borrowers shall furnish or before cause to be furnished to Lender the Closing Date. On or before following items (unless Lender expressly and specifically waives any of the Closing Date same in writing), all of which shall occur on or before September 1, 2005, are subject to the Agent shall receive the followingcomplete approval of Lender and its counsel in all respects:
(a) the Intercreditor Fully-executed original copies of (i) this Agreement, (ii) the Note, (iii) the Subordination Agreement relating to the ▇▇▇▇▇▇▇ Note, (iv) each other Subordination Agreement to be delivered on the Closing Date, (v) the Perfection Certificate, (vi) any Guaranty Agreement (which may, as of the Closing Date, be delivered in connection with this Agreement), (vii) the Global Note and (viii) all other Loan Documents, each of (i)-(viii) executed by the parties thereto;
(b) Financing statements which Lender shall have the right to file with the Secretaries of State in each jurisdiction of organization of each Loan Party, and such other locations as Lender may require (including, for the avoidance of doubt, security agreement and assignment documentation to be filed with the PTO and Control Agreements for Deposit Accounts (other than (i) certain cash collateral accounts and payroll account identified and agreed by Lender solely to the extent such accounts hold only such cash collateral and cash in an amount to satisfy the current payroll obligations of the applicable Loan Party and (ii) a Deposit Account at a depositary bank outside the United States that is subject to a daily sweep into a Deposit Account at a depository bank located in the United States) of each Loan Party), perfecting Lender’s security interest in the Collateral (as hereinafter defined), any Lien waivers or releases required by Lender and delivery of equity certificates and applicable equity powers in form and substance satisfactory to the Agent, duly executed, and in full force and effect;
(b) a certificate from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan DocumentsLender;
(c) Approved corporate documents for each Loan Party, including but not limited to: (i) copies of the publicly filed organizational documents of each Borrower Loan Party's governing documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of State in the jurisdiction of such Loan Party’s organization, (ii) copies of the bylaws, operating agreement and/or partnership agreement, as the case may be, and all amendments thereto, of each Borrower Loan Party;
(d) , together with a certificate of status with respect to each Borrower the secretary or assistant secretary of such Loan Party, dated within ten (10) days as of the Closing Date, stating that such certificate to be issued by the appropriate officer copies are complete and correct as of the jurisdiction of organization of the Borrower PartyClosing Date, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(eiii) certificates of status with respect to the appropriate governmental officials of each Borrower Partyjurisdiction as Lender may request, each dated within thirty (30) days prior to the Closing Date, stating that each Loan Party is in good standing with respect to the payment of franchise and similar taxes and is duly qualified to transact business therein, (iv) a certificate of the secretary or assistant secretary of each Loan Party, dated as of the Closing Date, as to the incumbency and signature of all officers or managers of such certificates Loan Party authorized to execute or attest to this Agreement, the Note and the other Loan Documents to which such Loan Party is a party, together with evidence of the incumbency of each such secretary or assistant secretary and (v) copies of the resolutions of the directors or other managers of each Loan Party, or the members of such Loan Party, authorizing, approving and ratifying this Agreement, the Note and the other the Loan Documents to which it is a party and the transactions contemplated herein and therein, duly adopted by such directors, other managers or members, as applicable, together with a certificate of the secretary or assistant secretary of such Loan Party, dated as of the Closing Date, stating that each such copy is a true and correct copy of resolutions duly adopted at a meeting, or by action taken on written consent, of such directors, other managers or members, as applicable, and that such resolutions have not been modified, amended, rescinded or revoked in any respect and are in full force and effect as of the Closing Date;
(d) Fully executed copy of amended and restated ▇▇▇▇▇▇▇ Note, reflecting release of all collateral and subordination terms in compliance with the Subordination Agreement relating to the ▇▇▇▇▇▇▇ Note;
(e) All Material Contracts (including, for the avoidance of doubt, the AT&T Contract and each Lease) shall be in full force and effect, and true, complete, correct copies of which to be issued by delivered to Lender prior to the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictionsClosing Date;
(f) an opinion At the request of counsel for the Borrower Parties Lender, collateral assignments of each Material Contract, acknowledged and consented to by each counterparty to such Material Contract, each in form and substance satisfactory to the AgentLender in its sole discretion;
(g) copies All representations and warranties contained in this Agreement (or otherwise made to the Lender in connection with this Agreement and in any other Loan Document) shall be true and correct in all material respects;
(h) The Lender shall have determined, in its sole and absolute discretion, that (i) no Material Adverse Effect has occurred and (ii) there are no facts or circumstances existing and not previously disclosed in writing to the Lender with respect to any Loan Party, any Subsidiary or the transaction that, in Lender’s sole judgment, are inconsistent with any such information disclosed to Lender prior to the Closing Date or, if previously known, would have caused Lender not to enter into this Agreement;
(i) There shall exist no Event of all existing Blocked Account AgreementsDefault and no condition, event, or act shall have occurred which, with notice or lapse of time, or both, would constitute an Event of Default;
(j) An opinion of counsel to each Loan Party with respect to the transactions contemplated herein and therein and in the Loan Documents, in form and substance approved by Lender;
(k) A certificate signed by a Responsible Officer of Enjoy certifying (A) that the conditions specified in Sections 4(e), 4(g), 4(h) and 4(i) have been satisfied, (B) that there has been no event or circumstance that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and Agent shall be satisfied (C) either (1) that no consents, licenses or approvals are required in connection with the execution, delivery and performance by each Loan Party and the validity against each Loan Party of the Loan Documents to which it is a party, or (2) that all such agreements consents, licenses and approvals have been obtained and are in full force and effect;
(hl) Results of searches or other evidence satisfactory to Lender (in each case dated as of a date satisfactory to Lender) indicating the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for absence of Liens on the benefit assets of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other each Loan Document or with the consummation of the transactions contemplated hereby and therebyParty; and
(km) all All other additional documents and legal matters requested by Lender, in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in such form and substance satisfactory to the AgentLender, in its sole discretion.
Appears in 1 contract
Conditions of Closing. 8.1. Required Deliveries Your obligation to purchase and pay for the Notes to be purchased by you hereunder is subject to the satisfaction, on or before the Closing DateDate of Closing, of the following conditions: A. Certain Documents. On or before the Closing Date which You shall occur on or before September 1, 2005, the Agent shall receive have received the following, each dated the Date of Closing:
(a) the Intercreditor Agreement, in form and substance satisfactory to the Agent, duly executed, and in full force and effect;
(b) a certificate from the Secretary of each Borrower Party (i) attesting The Note(s), executed by the Company, to be purchased by you; (ii) Certified copies of the resolutions of such Borrower Party's board the Board of directors authorizing its execution, deliveryDirectors or the Executive Committee of the Board of Directors of the Company approving this Agreement and the Notes, and performance of all Loan Documents required documents evidencing other necessary corporate action and governmental approvals, if any, with respect to be executed this Agreement and delivered by such Borrower Party on the Closing Date, and authorizing specific officers Notes; (iii) A certificate of such Borrower Party to execute the same and (ii) Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of such Borrower Party the Company authorized to sign such Loan Documents;
this Agreement and the Notes and the other documents to be delivered hereunder; (civ) Certified copies of the Articles of Incorporation and bylaws of the Company; (v) Certified copies of the resolutions of the respective Board of Directors or the Executive Committees thereof of each Borrower Party's governing documentsGuarantor approving this Agreement, as amendedthe Notes and the Master Guaranty, modifiedand all of the documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement, the Notes and the Master Guaranty; (vi) A certificate of the respective Secretary or supplemented to the Closing Date, certified by the Assistant Secretary of each Borrower Party;
(d) a certificate of status with respect to each Borrower Party, dated within ten (10) days of the Closing DateGuarantors certifying the names and true signatures of the officers thereof authorized to sign the Master Guaranty (and, such certificate in the case of NPCI, this Agreement) and the other documents to be issued delivered hereunder or under the Master Guaranty; (vii) Certified copies of the respective Articles of Incorporation and bylaws of each Guarantor; (viii) This Agreement, executed by the appropriate parties hereto; (ix) The Master Guaranty, executed by all of the Guarantors; (x) A favorable opinion of Shook, Hardy & Bacon L.L.P., special counsel to the Company and the Guarantors, satisfactory to you and substantially in the form of Exhibit B-1 attached hereto and as to such other matters as you may reasonably request; (xi) A favorable opinion of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, special counsel to the Purchasers, satisfactory to you and substantially in the form of Exhibit C attached hereto and as to such other matters as you may reasonably request; and (xii) The Officers' Certificate, executed by an officer of the jurisdiction Company and of organization of the Borrower PartyNPCI, which certificate shall indicate that such Borrower Party is referred to in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the Agent.3B. B.
Appears in 1 contract
Conditions of Closing. 8.1. Required Deliveries on or before The obligation of the Underwriters to purchase the Initial Units at the Closing Date. On or before Time on the Closing Date which and to purchase any Additional Units at the Closing Time on an Option Closing Date shall occur on or before September 1, 2005, the Agent shall receive be subject to the following:
(a) the Intercreditor Underwriters shall have received a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one business day prior to the Closing Date from the Company and MMDC;
(b) the Underwriters shall have received a certificate from the Company, dated as of the Closing Date and addressed to the Underwriters, signed by an officer of such person with respect to the Constating Documents of the Company, all resolutions of the Company’s board of directors relating to the Offering Documents, this Agreement, the Warrant Indenture and the certificates representing the Compensation Options, and the transactions contemplated hereby and thereby, the incumbency and specimen signatures of signing officers, and such other matters as the Underwriters may reasonably request;
(c) the Underwriters shall have received a certificate from the Company, dated as of the Closing Date and addressed to the Underwriters, signed by the Co-Chief Executive Officer and the Chief Financial Officer of the Company, certifying for and on behalf of the Company, to the best of their knowledge, information and belief, that, as at the Closing Time:
(i) no order, ruling or determination having the effect of suspending the sale or ceasing the trading in the Offered Units or any other securities of the Company has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or are contemplated or threatened by any regulatory authority;
(ii) since April 17, 2018, (A) there has been no adverse change (financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Company and the Subsidiaries (taken as a whole); and (B) other than as disclosed in the Offering Documents, no transaction has been entered into by the Company or any Subsidiary which is or would be material to such person other than in the ordinary course of business;
(iii) the Company has complied with all the material terms, and fulfilled the covenants and conditions of this Agreement on its part to be complied with up to the Closing Time;
(iv) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects (except for representations and warranties that are qualified as to materiality or Material Adverse Effect, which shall be true and correct in all respects) with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated by this Agreement; and
(v) the Final Receipt has been issued by the OSC for the Prospectus pursuant to the Passport System and, to the knowledge of such persons, no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Common Shares or other securities of the Company, or the Shares and Warrants to be issued and sold by the Company, has been issued and no proceedings for such purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened;
(d) the Underwriters shall have received satisfactory evidence that all requisite regulatory approvals and consents have been obtained by the Company in order to complete the Offering; and (ii) all necessary forms have been filed with the CSE to effect the listing of the Shares, the Warrants and the Compensation Shares issued upon the exercise of the Compensation Options, on the CSE, subject to the satisfaction of standard listing conditions of the CSE;
(e) the Underwriters shall have received a legal opinion addressed to the Underwriters, in the form and substance satisfactory to the Underwriters, acting reasonably, dated as of the Closing Date, from Canadian legal counsel for the Company, which counsel, in turn may rely, only as to matters of fact, on certificates of officers of the Company, as appropriate and subject to confirmation by the Underwriters, with respect to the following matters:
(i) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not listed as in default of Applicable Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(ii) the Company is a corporation duly incorporated and validly existing under the federal laws of Canada, and has all requisite corporate power, capacity and authority to carry on its business as now conducted and to own, lease and operate its property and assets as described in the Prospectus;
(iii) as to the authorized and issued capital of the Company;
(iv) the rights, privileges, restrictions and conditions attaching to the Shares, the Warrants and the Warrant Shares are accurately summarized in all material respects in the Prospectus;
(v) the Initial Shares and Initial Warrants sold pursuant to the Offering have been duly and validly created and authorized and are issued and are outstanding as fully paid shares or securities (as the case may be) of the Company and, in the case of the Initial Shares, are non-assessable;
(vi) the Over-Allotment Option has been duly and validly authorized and granted by the Company and the Additional Shares and Additional Warrants issuable upon the exercise of the Over-Allotment Option have been duly and validly created, allotted and reserved for issuance by the Company and, upon the exercise of the Over-Allotment Option including receipt by the Company of payment in full therefor, the Additional Shares and the Additional Warrants will be duly and validly created, authorized, issued and outstanding as fully paid shares or securities (as the case may be) and, in the case of the Additional Shares, are non- assessable;
(vii) the Warrant Shares have been duly and validly allotted and reserved for issuance and upon the exercise of the Warrants in accordance with their terms, the Warrant Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(viii) the Compensation Options have been duly created, authorized and issued by the Company;
(ix) the Compensation Shares issuable upon the exercise of the Compensation Options have been validly reserved for issuance by the Company and, upon the payment of the exercise price therefor and the issue thereof, the Compensation Shares will be validly issued as fully paid and non-assessable Common Shares
(x) the Company has all necessary corporate power and capacity: (i) to execute and deliver this Agreement, the Warrant Indenture and to issue the certificates representing the Compensation Options, and to perform its obligations hereunder and thereunder; (ii) to offer, issue, sell and deliver the Initial Shares and the Initial Warrants comprising the Initial Units; (iii) to grant the Over-Allotment Option and offer, issue, sell and deliver the Additional Shares and Additional Warrants comprising the Additional Units issuable upon exercise of the Over- Allotment Option; (iv) to issue, sell and deliver the Warrant Shares upon the exercise of the Warrants; and (v) to issue and grant the Compensation Options and to issue the Compensation Shares upon the exercise of the Compensation Options;
(xi) all necessary corporate action has been taken by the Company to authorize the execution and delivery of each of the Preliminary Prospectus, the Prospectus and any Supplementary Material and the filing thereof with the Securities Commissions;
(xii) the Company has duly authorized, executed and delivered, this Agreement, the Warrant Indenture and authorized the performance of its obligations hereunder and thereunder, including the offering, creation (as applicable), issue, sale and delivery of the Initial Shares and the Initial Warrants comprising the Initial Units, the grant of the Over-Allotment Option, the offering, creation (as applicable) issue, sale and delivery of the Additional Shares and Additional Warrants comprising the Additional Units upon exercise of the Over-Allotment Option, the issue of the Compensation Options and the Compensation Shares upon the exercise of the Compensation Options, and the issue, sale and delivery of the Warrant Shares upon the exercise of the Warrants, and each of this Agreement and the Warrant Indenture constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to appropriate qualifications that are customary of an offering of this nature;
(xiii) the execution and delivery of this Agreement and the Warrant Indenture and the fulfillment of the terms hereof and thereof, including the offering, creation (as applicable), issue, sale and delivery of the Initial Shares and the Initial Warrants comprising the Initial Units, the grant of the Over-Allotment Option, the offering, creation (as applicable) issue, sale and delivery of the Additional Shares and Additional Warrants comprising the Additional Units upon exercise of the Over- Allotment Option, the issuance and grant of the Compensation Options and the issuance of the Compensation Shares upon the exercise of the Compensation Options, and the issue, sale and delivery of the Warrant Shares upon the exercise of the Warrants, and the consummation of the transactions contemplated by this Agreement and the Warrant Indenture, do not result in a breach of (whether after notice or lapse of time or both) or constitute a default under (i) any of the terms, conditions or provisions of the articles of incorporation or amalgamation, as applicable, of the Company, or (ii) the laws of the Province of Ontario and the federal laws of Canada applicable therein;
(xiv) the form and terms of the definitive certificate representing the Common Shares and the Warrants have been approved by the directors of the Company and comply in all material respects with the CBCA, the articles and by-laws of the Company and the rules of the CSE;
(xv) Odyssey Trust Company is the duly appointed registrar and transfer agent for the Common Shares and as Warrant agent, registrar and transfer agent for the Warrants;
(xvi) all necessary documents have been filed, all requisite proceedings have been taken, all approvals, permits and consents of the appropriate regulatory authority in each Qualifying Jurisdiction have been obtained, and all necessary legal requirements have been fulfilled, in order to qualify the distribution of the Initial Shares and the Initial Warrants comprising the Initial Units, the Compensation Options and the Compensation Shares upon the exercise of the Compensation Options, the Over-Allotment Option and the Additional Shares and the Additional Warrants comprising the Additional Units in each of the Qualifying Jurisdictions through dealers who are registered under Applicable Securities Laws and who have complied with the relevant provisions of such Applicable Laws;
(xvii) the issuance by the Company of the Warrant Shares in accordance with and pursuant to the terms and conditions of the Warrants and the Warrant Indenture is exempt from the prospectus requirements of the Applicable Securities Laws in the Qualifying Jurisdictions and no prospectus or other document is required to be filed, no proceeding is required to be taken and no approval, permit or consent of the Securities Commissions is required to be obtained by the Company under the Applicable Securities Laws in the Qualifying Jurisdictions to permit such issuance of the Warrant Shares;
(xviii) the first trade in Warrant Shares underlying the Warrants is exempt from the prospectus requirements of the Applicable Securities Laws in the Qualifying Jurisdictions and no prospectus or other document is required to be filed, no proceeding is required to be taken and no approval, permit, consent or authorization of regulatory authorities is required to be obtained by the Company under Applicable Securities Laws of the Qualifying Jurisdictions to permit such trade through registrants registered under Applicable Securities Laws who have complied with such laws and the terms and conditions of their registration, provided that (i) such trade is not a “control distribution” as that term is defined in National Instrument 45-102 – Resale of Securities at the time of such trade, (ii) the Company is a reporting issuer (as defined under Applicable Securities Laws) at the time of such first trade, and (iii) such first trade is not a transaction or series of transactions involving a purchase and sale or a repurchase and resale in the course of or incidental to a distribution;
(xix) subject only to the Standard Listing Conditions, the Shares, the Warrants and the Compensation Shares issued upon the exercise of the Compensation Options, have been approved for listing on the CSE;
(xx) the execution and form of the certificates representing the Warrants and Compensation Options have been approved by the Company and comply with the requirements of the Canada Business Corporations Act;
(xxi) the summary under the heading “Certain Canadian Federal Income Tax Considerations” in the Prospectus is a fair and adequate summary of the principal Canadian federal income tax considerations generally applicable to the acquisition, holding and disposition of the Shares, Warrants and Warrant Shares, subject to the qualifications, assumptions, limitations and understandings set out in such summary; and
(xxii) confirming the statements under the heading “Eligibility for Investment” in the Prospectus, subject to the qualifications, assumptions and limitations set out under such heading. In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to counsel to the Underwriters, acting reasonably, as to the qualification for distribution of the Offered Units or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s Canadian counsel are qualified to practice and may rely, to the extent appropriate in the circumstances but only as to matters of fact, on certificates of officers of the Company and others;
(f) the Underwriters shall have received a legal opinion from legal counsel to, and duly qualified to practice law in the jurisdiction of existence of MMDC addressed to the Underwriters and legal counsel to the Underwriters with respect to: (i) the existence of MMDC; (ii) the issued and outstanding securities of MMDC and the securities thereof held by the Company; (iii) the corporate power and capacity to carry on its business and activities and to own and lease its property and assets; such opinion to be in form and substance, acceptable to the Underwriters and their legal counsel, acting reasonably;
(g) the Underwriters shall have received a regulatory opinion from the Company’s regulatory counsel that the Company and MMDC is in compliance with applicable State cannabis laws addressed to the Underwriters, such opinion to be in form and substance, acceptable to the Underwriters and their legal counsel, acting reasonably;
(h) if any Initial Units or Additional Units are sold to purchasers in the United States, the Underwriters will receive, at the Closing Time, a favourable legal opinion dated the Closing Date from United States securities counsel to the Company, to the effect that no registration of the Initial Units and Additional Units offered and sold to purchasers in the United States will be required under the U.S. Securities Act, such opinion to be in form and substance, acceptable to the Underwriters;
(i) the Company shall cause its auditors to deliver to the Underwriters a “bring down” comfort letter, addressed to the Underwriters and the board of directors of the Company, dated the Closing Date, in form and substance satisfactory to the AgentUnderwriters, duly executedacting reasonably, and in full force and effect;
(b) bringing forward to a certificate from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented date not more than two Business Days prior to the Closing Date, certified by Date the Secretary of each Borrower Party;
(dinformation contained in the comfort letters referred to in Section 5(a)(iii) a certificate of status with respect to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executedhereof;
(j) Each Borrower Party the Underwriters shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the Agent.sati
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. 8.1. Required Deliveries on The Original Purchaser's obligation to purchase the Bonds is subject to fulfillment of the following conditions at or before Closing, any of which the Original Purchaser may waive:
1. The Issuer's and the Company's representations hereunder shall be true on the date hereof and on and as of the Closing Date. On or before and shall be confirmed by certificates dated as of the Closing Date which shall occur on or before September 1date of Closing, 2005including but not limited to, a certificate of the Company as to its continuing compliance with all agreements, covenants and warranties, and the non-existence of any Event of Default under the Indenture, the Agent Loan Agreement, the Note, the Security Agreement, the Mortgage, the Indemnity and the Tax Certificate.
2. Neither the Issuer nor the Company shall receive have defaulted in any material respect in any of their covenants hereunder.
3. The Original Purchaser shall have received:
(1) an opinion and a supplemental opinion of Bond Counsel, dated as of Closing, substantially in the form of Exhibit A-1 and A-2 hereto;
(2) an opinion of the Issuer's counsel, dated as of Closing, substantially in the form of Exhibit B hereto;
(3) an opinion of counsel to the Company, dated as of Closing, substantially in the form of Exhibit C-1 hereto and an opinion of counsel to ELXSI Corporation substantially in the form of Exhibit C-2 hereto;
(4) a certified copy of the Bond Resolution;
(5) a copy of the following:
(a) 1. executed Indenture; 2. executed Loan Agreement; 3. executed Note; 4. executed Mortgage; 5. executed Security Agreement; 6. the Intercreditor AgreementBonds; 7. executed Tax Certificate; 8. executed Indemnity; and 9. executed Guaranty Agreement dated as of September 24, 1997 between ELXSI Corporation and Bank of America National Trust and Savings Association in form and substance acceptable to the Original Purchaser;
(6) evidence satisfactory to the AgentOriginal Purchaser that an A.L.T.A. Loan Policy of Title Insurance, duly executedinsuring the Trustee and in an amount equal to the aggregate principal amount of the Bonds (to the extent that the proceeds of the Bonds are used for property insurable under such title policy, and otherwise in an amount equal to the property so insurable) insuring the Company's title to the insurable portion of the Project, is in full force and effect;; and
(b) a certificate from 4. The satisfaction by the Secretary Company and the Issuer of each Borrower Party (i) attesting all conditions required by Bond Counsel prior to the resolutions delivery of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of each Borrower Party;
(d) a certificate of status with respect to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an Bond Counsel opinion of counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation issuance of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the AgentBonds.
Appears in 1 contract
Conditions of Closing. 8.1. Required Deliveries on or before The obligation of the Closing Date. On or before Lenders to make the Closing Date which shall occur on or before September 1, 2005, Revolving Credit Facility available to any Borrower is subject to the Agent shall receive the followingconditions precedent that:
(a) the Intercreditor AgreementAgent shall have received on the Closing Date, in form and substance satisfactory to the AgentAgent and Lenders, duly executedthe following:
(i) executed originals of each of this Agreement, the Notes, the initial Facility Guaranties, the initial Security Instruments (but not a Security Agreement or Lockbox Agreement unless Loans are to be made to the Initial Borrower), the UniCapital Support Agreement and in full force the other Loan Documents, together with all schedules and effectexhibits thereto;
(bii) a certificate from the Secretary of each Borrower Party (i) attesting favorable written opinion or opinions with respect to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required and the transactions contemplated thereby of special counsel to be executed and delivered by such Borrower Party on the Credit Parties dated the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented addressed to the Closing DateAgent (on behalf of itself and the Lenders), certified by substantially in the Secretary form of each Borrower Party;
(d) a certificate of status with respect Exhibit G-1 or otherwise reasonably satisfactory to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of special counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(giii) copies resolutions of all existing Blocked Account Agreementsthe boards of directors or other appropriate governing body (or of the appropriate committee thereof) of UniCapital and each Credit Party (or, in the case of a Credit Party that is a trust, resolutions of the appropriate board or committee of each trustee thereof) certified by its secretary or assistant secretary as of the Closing Date, approving and adopting the Loan Documents to be executed by such Person, and Agent shall be satisfied that all such agreements are in full force authorizing the execution and effectdelivery thereof;
(hiv) specimen signatures of officers of UniCapital and each of the Credit Parties executing the Loan Documents on behalf of UniCapital or such Credit Party, certified by the secretary or assistant secretary of UniCapital or such Credit Party;
(v) the Agent shall Organizational Documents of UniCapital and each of the Credit Parties and each of the trustees for each UniCapital Subsidiary Trust certified as of a recent date by the Secretary of State or comparable official of its jurisdiction of organization (provided that the trust agreement of a UniCapital Subsidiary Trust may be satisfied that certified by the secretary or assistant secretary of its Beneficial Owner);
(vi) Operating Documents of UniCapital and each of the Credit Parties and each of the trustees for each UniCapital Subsidiary Trust certified as of the Closing Date as true and correct by its secretary or assistant secretary;
(vii) certificates issued as of a recent date by the Secretaries of State or comparable officials of the respective jurisdictions of formation of UniCapital and each of the Credit Parties (excluding UniCapital Subsidiary Trusts, but including each trustee thereof) as to the due existence and good standing of such Person;
(viii) appropriate certificates of qualification to do business, good standing and, where appropriate, authority to conduct business under assumed name, issued in respect of UniCapital and each of the Credit Parties (excluding UniCapital Subsidiary Trusts, but including each trustee thereof) as of a recent date by the Secretary of State or comparable official of each jurisdiction in which the failure to be qualified to do business or authorized so to conduct business could have a Material Adverse Effect;
(ix) notice of appointment of the initial Authorized Representative(s);
(x) fully-executed Uniform Commercial Code financing statements filed against appropriate for filing in all Borrower Parties naming Agent, for places required by applicable law to perfect the benefit Liens of Lenders, the Agent under the Security Instruments as the secured creditor are sufficient a first priority Lien as to create items of Collateral in which a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting may be perfected by the filing of all such financing statements;, and such other documents and/or evidence of other actions as may be necessary under applicable law to perfect the Liens of the Agent under the Security Instruments as a first priority Lien in and to such other Collateral as the Agent may require, including without limitation:
(1) the delivery by the Borrowers of all stock certificates and other certificates, if any, evidencing ownership of any Pledged Interests, accompanied in each case by duly executed stock or transfer powers (or other appropriate transfer documents) in blank affixed thereto; and
(2) the delivery by the Borrowers of "control agreements" that have been executed by the respective issuers (and consented to by the respective Credit Parties) with respect to any uncertificated Pledged Interests; and
(xi) evidence that all fees payable by the Borrowers on the Closing Date to the Agent and the Lenders have been paid in full; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) the Third Amendment no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be likely to the First Lien Credit Agreement shall have been executed;result in a Material Adverse Effect; and
(jii) Each Borrower Party UniCapital and the Credit Parties shall have received all licensesapprovals, approvals consents and waivers, and shall have made or evidence of other actions given all necessary filings and notices as shall be required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of to consummate the transactions contemplated hereby and thereby; and
without the occurrence of any default under, conflict with or violation of (kA) all other documents and legal matters in connection with any applicable law, rule, regulation, order or decree of any Governmental Authority or arbitral authority or (B) any agreement, document or instrument to which any of the transactions contemplated Credit Parties is a party or by this Agreement shall have been delivered, executed, which any of them or recorded and shall be in form and substance satisfactory to the Agenttheir properties is bound.
Appears in 1 contract
Sources: Credit Agreement (Unicapital Corp)
Conditions of Closing. 8.1. Required Deliveries on or before The effectiveness of this Agreement is subject to the Closing Date. On or before the Closing Date which shall occur on or before September 1, 2005, the Agent shall receive the followingconditions precedent that:
(a) the Intercreditor AgreementAgent shall have received, in form and substance satisfactory to the AgentAgent and Lenders, duly executedthe following:
(i) executed originals of each of this Agreement, the Notes (if applicable), the initial Facility Guaranties, the initial Parent Guarantor Guaranties, the initial Security Agreements and in full force the other initial Loan Documents, together with all schedules and effectexhibits thereto;
(b) a certificate from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, favorable written opinion or supplemented to the Closing Date, certified by the Secretary of each Borrower Party;
(d) a certificate of status opinions with respect to each Borrower Party, the Loan Documents and the transactions contemplated thereby of special counsel to the Credit Parties dated within ten (10) days of the Closing DateDate (including opinions of New York, such certificate Bermuda and Irish counsel), addressed to be issued by the appropriate officer Agent (on behalf of itself and the jurisdiction Lenders), substantially in the form of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect Exhibit G-1 and Exhibit G-3 or otherwise reasonably satisfactory to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of special counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(giii) copies resolutions of all existing Blocked Account Agreementsthe boards of directors or other appropriate governing body (or of the appropriate committee thereof) of each Parent Guarantor and Credit Party (except in the case of a Credit Party that is a trust), certified by its secretary or assistant secretary as of the Closing Date, approving and adopting the Loan Documents to be executed by such Person, and Agent shall be satisfied that all such agreements are in full force authorizing the execution and effectdelivery thereof;
(hiv) specimen signatures of officers of each Parent Guarantor and the Credit Parties executing the Loan Documents on behalf of such party, certified by the secretary or assistant secretary of such party;
(v) the Agent shall Organizational Documents of each Parent Guarantor, each Credit Party and each of the trustees for each Holdings Subsidiary Trust certified as of a recent date by the Secretary of State or comparable official of its jurisdiction of organization (provided that the Trust Agreement of a Holdings Subsidiary Trust may be satisfied that certified by the secretary or assistant secretary of its Beneficial Owner);
(vi) certificates issued as of a recent date by the Secretaries of State or comparable officials of the respective jurisdictions of formation of each of the Credit Parties (excluding Holdings Subsidiary Trusts) as to the due existence and good standing of such Person;
(vii) notice of appointment of the initial Authorized Representative(s);
(viii) Uniform Commercial Code financing statements filed against appropriate for filing in all Borrower Parties naming Agent, for places required by applicable law to perfect the benefit Liens of Lenders, the Agent under the Security Instruments as the secured creditor are sufficient a first priority Lien as to create items of Collateral in which a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting may be perfected by the filing of all such financing statements, and such other documents and/or evidence of other actions as may be necessary under applicable law to perfect the Liens of the Agent under the Security Instruments as a first priority Lien in and to such other Collateral as the Agent may require;
(ix) the delivery by the Parent, AA Ireland Ltd., AHC Ltd., Bermuda Holding 2 Ltd., AI 3 Ltd. and the Borrowers of all stock certificates and other certificates, if any, evidencing ownership of any Pledged Interests, accompanied in each case by duly executed stock or transfer powers (or other appropriate transfer documents) in blank affixed thereto; and
(x) the delivery by the Parent of an Account Control Agreement with respect to each Account listed on Schedule 6.21 and the delivery by Bermuda Holding 2 Ltd., AI 3 Ltd., and the Borrowers of "control agreements" that have been executed by the respective issuers (and consented to by the respective Credit Parties) with respect to any uncertificated Pledged Interests; and
(xi) evidence that any fees payable by any Parent Guarantor or any Credit Party on the Closing Date to the Agent and the Lenders have been paid in full; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) the Third Amendment no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be likely to the First Lien Credit Agreement shall have been executed;result in a Material Adverse Effect; and
(jii) Each Borrower Party the Parent Guarantors and the Credit Parties shall have received all licensesapprovals, approvals consents and waivers, and shall have made or evidence of other actions given all necessary filings and notices as shall be required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of to consummate the transactions contemplated hereby and thereby; andwithout the occurrence of any default under, conflict with or violation of (A) any applicable law, rule, regulation, order or decree of any Governmental Authority or arbitral authority or (B) any agreement, document or instrument to which any of the Credit Parties is a party or by which any of them or their properties is bound.
(kc) all other documents Evidence that the Parent has received not less than $400,000,000 of cash capital contributions from its investors and legal matters in connection with has the transactions contemplated by this Agreement shall have right, without restriction, limitation or the requirement to satisfy any condition that has not yet been deliveredmet or waived, executed, or recorded and shall be in form and substance satisfactory to require its shareholders to purchase additional shares of the AgentParent for an aggregate purchase price of $100,000,000 (the "$100,000,000 Capital Call").
Appears in 1 contract
Sources: Credit Agreement (Aircastle LTD)
Conditions of Closing. 8.1. Required Deliveries on The Purchaser's obligations to purchase the Bonds are subject to fulfillment of the following conditions at or before the Closing Date. On or before the Closing Date which shall occur on or before September 1, 2005, the Agent shall receive the followingClosing:
(a) The representations of the Intercreditor AgreementIssuer and the Tenant hereunder must be true on and as of the Issue Date and must be confirmed by certificates dated as of the Closing;
(b) Neither the Issuer nor the Tenant has defaulted in the performance of any of their respective covenants hereunder;
(c) The Purchaser must receive at the Closing:
(i) an opinion of Bond Counsel, dated as of the Closing, in form and substance satisfactory to the Agent, duly executed, Purchaser and in full force and effect;its counsel.
(b) a certificate from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of each Borrower Party;
(d) a certificate of status with respect to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties Tenant, dated as of the Closing, in form and substance satisfactory to Bond Counsel and to the Agent;Purchaser and its counsel confirming the Tenant's representations as set forth in paragraphs (a) through (d) inclusive of Section 5 of this Bond Purchase Agreement.
(giii) copies an opinion of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, counsel for the benefit of LendersIssuer, dated as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been deliveredClosing, executed, or recorded and shall be in form and substance satisfactory to Bond Counsel and to the AgentPurchaser and its counsel, confirming the Issuer's representations set forth in paragraphs (a) through (g) inclusive of Section 4 of this Bond Purchase Agreement.
(iv) a certificate or certificates, satisfactory in form and substance to Bond Counsel and the Purchaser and its counsel, of an authorized official of the Issuer dated the date of the Closing to the effect that (A) each of the representations of the Issuer set forth in Section 4 hereof is true, accurate and complete in all material respects as of the Closing, and each of the agreements of the Issuer set forth in this Bond Purchase Agreement to be complied with at or prior to the Closing has been complied with; and (B) no litigation is pending, or to such official's knowledge, threatened, to restrain or enjoin the issuance or delivery of the Bonds, or contesting or questioning the validity of the Bonds, the proceedings or authority under which they are issued, the existence of the Issuer, the authority of the Issuer to enact the Ordinance or enter into the Indenture, the Project Lease or the Bond Purchase Agreement, or the Issuer's pledge of the Project, the revenues therefrom and the Trust Estate under the Indenture as security for the payment of the Bonds, and
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions of Closing. 8.1. Required Deliveries on or before The effectiveness of this Agreement is subject to the Closing Date. On or before the Closing Date which shall occur on or before September 1, 2005, the Agent shall receive the followingfollowing conditions precedent:
(a) The Agent shall have received, on the Intercreditor Agreement, Closing Date in form and substance satisfactory to the AgentAgent and the Lenders the following:
(i) executed originals of each of this Agreement, duly executedeach Note requested by any Lender, the Facility Guaranty and the other Loan Documents, together with all schedules and exhibits thereto in full force form and effectsubstance satisfactory to the Agent and the Lenders;
(bii) a certificate from the Secretary favorable written opinion of each Borrower Party (i) attesting special U.S. counsel with respect to enforceability and internal counsel with respect to all other matters, substantially in the resolutions form previously received in connection with the closing of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Existing Credit Agreement dated the Closing Date, addressed to the Agent and authorizing specific officers of such Borrower Party the Lenders and satisfactory to execute special counsel to the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan DocumentsAgent;
(ciii) copies resolutions of the board of directors (or of the appropriate committee thereof) of each of the US Facility Borrowers and the Guarantors certified by its secretary or assistant secretary as of the Closing Date, approving and adopting the Loan Documents to be executed by such Borrower or Guarantor, and authorizing the execution and delivery thereof; specimen signatures of officers of each Borrower Party's governing documents, as amended, modified, or supplemented to and Guarantor executing the Closing DateLoan Documents, certified by the Secretary or Assistant Secretary of each such Borrower Party;
(d) a certificate of status or Guarantor, as applicable, and with respect to each Offshore Facility Borrower Party, dated within ten comparable resolutions (10or other corporate or equity holder action) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is and specimen signatures customary in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictionsfor entering into transactions of the type contemplated hereby;
(fiv) an opinion copies of counsel the Organizational Documents and Operating Documents of each US Facility Borrower and each Guarantor certified as true and correct by the secretary or assistant secretary of each US Facility Borrower or Guarantor, as applicable, and, with respect to each Offshore Facility Borrower, comparable organizational and operating documents for the jurisdiction of organization of such Borrower Parties certified by an appropriate officer of such Borrower;
(v) certificates issued as of a recent date by the Secretary of State or comparable official of the jurisdiction of the formation of each of the US Facility Borrowers and each Guarantor as to the corporate good standing of such Borrower or Guarantor, as applicable, therein, and, with respect to the Offshore Facility Borrowers, comparable evidence of legal existence of such Borrower to the extent available in form the jurisdiction of organization of such Borrower;
(vi) all fees, including all commitment fees, payable by the Borrowers on the Closing Date to the Agent or the Lenders;
(vii) financial statements of the Borrower and substance its Subsidiaries required to be delivered pursuant to Section 7.04(a)(i) hereof;
(viii) a certificate of an Authorized Representative of the Parent reasonably satisfactory -52- to the Agent and the Lenders as to the matters set forth in Sections 6.01(b)(ii) through (iv) and 6.01(c)(i) hereof;
(ix) written confirmation that no outstanding liabilities, obligations, or debts exist under the Existing Credit Agreement from Bank of America, National Association and evidence, satisfactory to the Agent;, in its reasonable discretion, that the Existing Credit Agreement has expired or has been cancelled according to its terms and not been renewed; and
(gx) copies of all existing Blocked Account Agreementssuch other documents, instruments, certificates and Agent shall be satisfied that all such agreements are in full force and effect;
(h) opinions as the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment or any Lender may reasonably request on or prior to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority Closing Date in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby.
(b) Each of the following shall have occurred or be true:
(i) The Agent shall have completed all due diligence with respect to the Parent and its Subsidiaries in scope and determination satisfactory to the Agent in its sole discretion;
(ii) There shall not be any action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that (a) purports to affect the transactions contemplated hereby, (b) would reasonably be expected to have a material adverse effect on the business, operations or condition (financial or otherwise) of the Parent and its Subsidiaries taken as a whole or (c) would reasonably be expected to have a material adverse effect on the ability of the Loan Parties to perform their respective obligations hereunder or under the other Loan Documents;
(iii) The Parent and its Subsidiaries shall be in compliance with all existing financial and material contractual obligations before and immediately after giving effect to the financings and other transactions contemplated hereby;
(iv) The Parent and its Subsidiaries shall have received all government, shareholder and third-party approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any applicable law, rule, regulation, order or decree of any court or other Governmental Authority or arbitral authority, (B) any Organizational Document or Operating Documents of the Parent or any Subsidiary or (C) any agreement, document or instrument to which any of the Parent or any Subsidiary is a party or by which any of them or their properties is bound, if such default, conflict or violation would reasonably be expected to result in a material adverse effect on the business, operations or condition (financial or otherwise) of the Parent and therebyits Subsidiaries taken as a whole; and all applicable waiting periods shall have expired without any action being taken or threatened in writing by any authority that could restrain, prevent or impose any material adverse conditions on the making of any Loan or other transactions contemplated hereby, and no law or regulation shall be applicable which would reasonably be expected to have a Material Adverse Effect; and
(kc) all other documents In the good faith judgment of the Agent and legal matters the Lenders:
(i) There shall not have occurred a material adverse change in connection with the transactions contemplated by this Agreement business, operations or condition (financial or otherwise) of the Parent and its Subsidiaries taken as a whole since March 31, 2004; and
(ii) Since May 20, 2004, there shall not have been delivered, executedoccurred and be continuing a material adverse change in the market for syndicated credit facilities similar in nature to the Facilities or a material disruption of, or recorded and shall be a material adverse change in, financial, banking or capital market conditions, in form and substance satisfactory to each case as determined by the AgentAgent in its reasonable discretion.
Appears in 1 contract
Sources: Credit Agreement (Technitrol Inc)
Conditions of Closing. 8.1. Required Deliveries on or before the Closing Date. On or before The obligation of each Lender to make Loans hereunder shall not become effective, and the Closing Date shall not occur, until the date on which shall occur on or before September 1, 2005, each of the Agent shall receive following conditions is satisfied:
(a) The Administrative Agent’s receipt of the following:
(ai) the Intercreditor Agreement, in form and substance either (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence satisfactory to the Agent, duly executed, and in full force and effectAdministrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(bii) a certificate from Note executed by the Secretary Borrower in favor of each Borrower Party (i) attesting Lender requesting a Note at least two Business Days prior to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date;
(iii) such certificates of resolutions or other action, and authorizing specific officers incumbency certificates and/or other certificates of such Borrower Party to execute the same and (ii) certifying the names and true signatures Responsible Officers of each of the officers Borrower and the Subsidiary Guarantor as the Administrative Agent may require evidencing the identity, authority and capacity of such Borrower Party each Responsible Officer thereof authorized to sign such act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(civ) copies such documents and certifications as the Administrative Agent may reasonably require to evidence that each of the Borrower and the Subsidiary Guarantor is duly organized, and that each of the Borrower Party's governing documents, as amended, modified, or supplemented to and the Closing Date, certified by Subsidiary Guarantor is validly existing and in good standing in the Secretary State of each Borrower PartyDelaware;
(dv) a certificate favorable written opinion of status with respect Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Borrower and the Subsidiary Guarantor, addressed to the Administrative Agent and each Borrower Party, Lender and dated within ten (10) days as of the Closing Date, covering such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory matters relating to the Agent;
(g) copies of all existing Blocked Account AgreementsBorrower, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming AgentSubsidiary Guarantor, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with incident to the transactions contemplated by this Agreement as the Administrative Agent may reasonably require;
(vi) a certificate signed by a Responsible Officer of the Borrower (on behalf of the Borrower) certifying that the conditions specified in Sections 4.02(a) and (b) have been satisfied; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid by the Borrower in connection with the Loan Documents on or before the Closing Date shall have been deliveredpaid.
(c) The Administrative Agent and the Lenders shall have received all documentation and other information as is reasonably requested by the Administrative Agent or the Lenders about the Loan Parties and required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, executedincluding the Patriot Act. Without limiting the generality of the provisions of Section 9.04, or recorded for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement (and each such Lender’s Affiliates, successors and/or assigns) shall be in form and substance deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the AgentAdministrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: 364 Day Credit and Guarantee Agreement (PayPal Holdings, Inc.)
Conditions of Closing. 8.1. Required Deliveries on or before The effectiveness of this Agreement is subject to the Closing Date. On or before the Closing Date which shall occur on or before September 1, 2005, the Agent shall receive the followingfollowing conditions precedent:
(a) The Administrative Agent's receipt of the Intercreditor Agreementfollowing, each of which shall be originals, facsimiles or pdf copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement and the Facility Guaranty sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in its jurisdiction of organization, including certified copies of such Loan Parties' Organization Documents, certificates of good standing and/or qualification to engage in business;
(v) a favorable opinion of counsel to the Loan Parties as to matters of Florida and United States Law, addressed to the Administrative Agent and the Lenders, in form and substance satisfactory to the AgentAdministrative Agent and its legal counsel;
(vi) a certificate of a Responsible Officer or Secretary of each Loan Party either (A) attaching copies of all consents, duly executedlicenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(bvii) a certificate from signed by a Responsible Officer of the Secretary Borrower certifying
(A) that the conditions specified in Sections 5.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of each the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (C) the current Debt Ratings; and (D) the Borrower Party (i) attesting to has paid all required documentary stamp taxes, intangible taxes and other taxes and fees imposed upon the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures filing and/or or recording of the officers of such Borrower Party authorized to sign such Credit Agreement and the other Loan Documents;
(viii) a Compliance Certificate signed by a Responsible Officer of the Borrower, demonstrating that the Borrower is in compliance with the covenants set forth in Section 8.13, which certificate (for purposes of this Section 5.0l(a)(viii)) may exclude paragraphs 1, 2, 3 and 4 of Exhibit D), shall be based on the financial statements of the Borrower's for the fiscal period ending June 30, 2015; and
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees and expenses required to be paid on or before the Closing Date shall have been paid, including those set forth in the Fee Letter.
(c) copies Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of each Borrower Party's governing documents, as amended, modified, the Administrative Agent to the extent invoiced prior to or supplemented to on the Closing Date, certified by ; provided that such payment shall not thereafter preclude a final settling of accounts between the Secretary Borrower and the Administrative Agent and shall not relieve the Borrower of each Borrower Party;its obligation to pay or reimburse the Administrative Agent for any additional Attorney Costs in accordance with Section 11.04; and provided further that this clause (c) is subject to the limitation on reimbursement of certain Attorney Costs set forth in the Fee Letter.
(d) a certificate of status with respect to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and The Administrative Agent shall have received searches reflecting satisfactory evidence that all obligations owing under the filing Borrower's existing credit agreement among the Borrower, Bank of all such financing statements;
(i) America, as administrative agent, and the Third Amendment to other lenders party thereto, and any liens thereunder, shall have been, or concurrently with the First Lien Credit date hereof will be, terminated. Without limiting the generality of the provisions of Section 10.04, for purposes of determining compliance with the conditions specified in this Section 5.01, each Lender that has signed this Agreement shall be deemed to have been executed;
(j) Each Borrower Party consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by notice from such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory Lender prior to the Agentproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Tech Data Corp)
Conditions of Closing. 8.1. Required Deliveries on The effectiveness of the obligations of the Lenders to make Loans are subject to the satisfaction (or before waiver in accordance with Section 10.01) of the Closing Date. On or before the Closing Date which shall occur on or before September 1, 2005, the Agent shall receive the followingfollowing conditions:
(a) the Intercreditor Administrative Agent shall have received on the Closing Date the following:
(i) from each party hereto a counterpart of this Agreement signed on behalf of such party (which, subject to Section 10.07(b), may include any Electronic Signatures transmitted by emailed. pdf or any other electronic means that reproduces an image of an actual executed signature page of a counterpart of this Agreement);
(ii) the written opinion or opinions with respect to the Loan Documents and the transactions contemplated thereby of (A) J▇▇▇▇▇▇▇ ▇. Sim, General Counsel of the Company, (B) D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, special counsel to the Company, and (C) B▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Pennsylvania counsel for the Company, in form each case, dated the Closing Date, addressed to the Administrative Agent and substance the Lenders and satisfactory to the Administrative Agent;
(iii) resolutions of the board of directors (or of the appropriate committee thereof) of the Company certified by its secretary or assistant secretary as of the Closing Date, duly executedapproving and adopting the Loan Documents to be executed by the Company and authorizing the execution and delivery thereof;
(iv) specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Company, certified by its secretary or assistant secretary;
(v) the organizational documents of the Company certified as of the Closing Date as true and correct by its secretary or assistant secretary;
(vi) a certificate issued as of a recent date by the Secretary of State or other appropriate Governmental Authority of the jurisdiction of formation of the Company as to the due existence and good standing of the Company; and
(vii) a certificate of the Company certifying that (A) as of the Closing Date, each of the representations and warranties set forth in Article V is true and correct in all material respects, (B) after giving effect to the Closing Date and all Loans to be made on the Closing Date, if any, there will be no Default or Event of Default under this Agreement, and (C) except as disclosed in full force any reports or financial statements publicly filed with the Securities and effectExchange Commission prior to the Closing Date, as of the Closing Date there shall not have occurred a material adverse change since April 2, 2022, in the business, financial position or results of operations of the Company and its Subsidiaries, taken as a whole;
(b) a certificate from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, any fees and performance of all Loan Documents expenses required to be executed and delivered by such Borrower Party paid on or before the Closing DateDate shall have been paid, and authorizing specific officers of such Borrower Party including, to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented extent invoiced at least one Business Day prior to the Closing Date, certified all fees, charges and disbursements of counsel to the Administrative Agent; and
(c) the Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation, to the extent requested by the Secretary of each Borrower Party;
(d) a certificate of status with respect Lenders at least three Business Days prior to each Borrower Party, dated within ten (10) days of the Closing Date. Without limiting the generality of the provisions of Article IX, such certificate for purposes of determining satisfaction of the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Partysatisfied with, each dated within thirty (30) days of the Closing Date, such certificates document or other matter required hereunder to be issued consented to or approved by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance acceptable or satisfactory to a Lender unless the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Administrative Agent shall have received searches reflecting the filing of all notice from such financing statements;
(i) the Third Amendment Lender prior to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the Agentproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Term Loan Agreement (V F Corp)
Conditions of Closing. 8.1. Required Deliveries on The effectiveness of the obligations of the Lenders to make Loans are subject to the satisfaction (or before waiver in accordance with Section 10.01) of the Closing Date. On or before the Closing Date which shall occur on or before September 1, 2005, the Agent shall receive the followingfollowing conditions:
(a) the Intercreditor Administrative Agent shall have received on the Closing Date the following:
(i) from each party hereto a counterpart of this Agreement signed on behalf of such party (which, subject to Section 10.07(b), may include any Electronic Signatures transmitted by emailed. pdf or any other electronic means that reproduces an image of an actual executed signature page of a counterpart of this Agreement);
(ii) the written opinion or opinions with respect to the Loan Documents and the transactions contemplated thereby of (A) ▇▇▇▇▇▇▇▇ ▇. Sim, General Counsel of the Company, (B) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to the Company, and (C) ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Pennsylvania counsel for the Company, in form each case, dated the Closing Date, addressed to the Administrative Agent and substance the Lenders and satisfactory to the Administrative Agent;
(iii) resolutions of the board of directors (or of the appropriate committee thereof) of the Company certified by its secretary or assistant secretary as of the Closing Date, duly executedapproving and adopting the Loan Documents to be executed by the Company and authorizing the execution and delivery thereof;
(iv) specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Company, certified by its secretary or assistant secretary;
(v) the organizational documents of the Company certified as of the Closing Date as true and correct by its secretary or assistant secretary;
(vi) a certificate issued as of a recent date by the Secretary of State or other appropriate Governmental Authority of the jurisdiction of formation of the Company as to the due existence and good standing of the Company; and
(vii) a certificate of the Company certifying that (A) as of the Closing Date, each of the representations and warranties set forth in Article V is true and correct in all material respects, (B) after giving effect to the Closing Date and all Loans to be made on the Closing Date, if any, there will be no Default or Event of Default under this Agreement, and (C) except as disclosed in full force any reports or financial statements publicly filed with the Securities and effectExchange Commission prior to the Closing Date, as of the Closing Date there shall not have occurred a material adverse change since April 2, 2022, in the business, financial position or results of operations of the Company and its Subsidiaries, taken as a whole;
(b) a certificate from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, any fees and performance of all Loan Documents expenses required to be executed and delivered by such Borrower Party paid on or before the Closing DateDate shall have been paid, and authorizing specific officers of such Borrower Party including, to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented extent invoiced at least one Business Day prior to the Closing Date, certified all fees, charges and disbursements of counsel to the Administrative Agent; and
(c) the Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation, to the extent requested by the Secretary of each Borrower Party;
(d) a certificate of status with respect Lenders at least three Business Days prior to each Borrower Party, dated within ten (10) days of the Closing Date. Without limiting the generality of the provisions of Article IX, such certificate for purposes of determining satisfaction of the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Partysatisfied with, each dated within thirty (30) days of the Closing Date, such certificates document or other matter required hereunder to be issued consented to or approved by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance acceptable or satisfactory to a Lender unless the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Administrative Agent shall have received searches reflecting the filing of all notice from such financing statements;
(i) the Third Amendment Lender prior to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the Agentproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Term Loan Agreement (V F Corp)
Conditions of Closing. 8.1. Required Deliveries on (A) The purchase of the Series 2012 Certificates by the Purchaser is subject to fulfillment of the following conditions at or before the Closing Date. On or before the Closing Date which shall occur on or before September 1, 2005, the Agent shall receive the followingClosing:
(a) The Trustee’s and the Intercreditor AgreementDistrict’s representations hereunder shall be true on and as of the Closing Date and shall be confirmed by certificates at Closing, in form and substance satisfactory to the Agent, duly executed, and in full force and effect;as provided below.
(b) a certificate from Neither the Secretary of each Borrower Party (i) attesting to Trustee nor the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures District shall have defaulted in any of the officers of such Borrower Party authorized to sign such Loan Documents;covenants hereunder.
(c) The Purchaser shall have received:
(i) original executed copies (or photocopies thereof) of each Borrower Party's governing documents, as amended, modified, or supplemented the Certificate Documents in forms acceptable to the Closing DatePurchaser, certified by the Secretary Trustee and the District, and all other documents executed in connection therewith or delivered at Closing;
(ii) opinion of each Borrower Party;Special Tax Counsel, dated the date of Closing, in the form acceptable to Purchaser; and
(iii) opinion of District Counsel, dated the date of Closing, in the form acceptable to Purchaser.
(d) a certificate of status At Closing there shall not have been any material adverse change with respect to each Borrower Partythe transactions contemplated by this Certificate Purchase Agreement or in the operations, dated within ten (10) days property or financial condition of the Closing DateDistrict, such certificate to be issued except as set forth in or contemplated by the appropriate officer Certificate Purchase Agreement, which, in the judgment of the jurisdiction of organization Purchaser, is material and makes it inadvisable to proceed with the placement and sale of the Borrower PartySeries 2012 Certificates; and the Purchaser shall have received certificates that no such material adverse change has occurred or, which certificate shall indicate that if such Borrower Party is in good standing in such jurisdiction;a change has occurred, full information with respect thereto.
(e) certificates of status with respect The Purchaser shall receive such documentation as it may reasonably request to each Borrower Party, each dated within thirty (30) days evidence that the District has received all necessary approvals from applicable state and local governmental authorities required on the part of the Closing Date, such certificates District to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority obtained in connection with the execution and delivery by such Borrower Party of the Certificate Documents and this Certificate Purchase Agreement or any other Loan Document or with and the District’s consummation of the transactions contemplated hereby and thereby; and.
(kf) all other documents and legal matters in connection with the transactions contemplated by this Agreement The District shall have been delivered, executed, or recorded and shall be in form and substance satisfactory received an allocation of Qualified Zone Academy Bonds from the Kansas State Department of Education at least equal to the Agentaggregate principal amount of the Series 2012 Certificates.
Appears in 1 contract
Sources: Certificate Purchase Agreement
Conditions of Closing. 8.1. Required Deliveries on or before (a) The Company’s obligation to issue the Note to the Subscriber is subject to the conditions that:
(i) such issuance be conditionally accepted by the TSX;
(ii) the issuance of the Note and Underlying Securities are exempt from the prospectus filing requirements under applicable securities statutes, regulations, rules, policy statements and interpretation notes and by the applicable rules and policies of the TSX (collectively, “Securities Laws”); and
(iii) the representations and warranties of the Subscriber are true and correct as at the Closing Date. On or before the Closing Date which shall occur on or before September 1, 2005, the Agent shall receive the following:
(a) the Intercreditor Agreement, in form and substance satisfactory to the Agent, duly executed, and in full force and effect;.
(b) a certificate from The Subscriber’s obligation to subscribe for the Secretary of each Borrower Party (i) attesting Note is subject to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of each Borrower Party;
(d) a certificate of status with respect to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;following conditions:
(i) the Third Amendment issue of the Note having been approved by the board of directors of the Company;
(ii) the issue of the Note having been conditionally approved by the TSX;
(iii) the Company shall have provided evidence satisfactory to the First Lien Credit Agreement Subscriber that the Company has obtained commitment to raise $500,000 in additional to the Loan Amount;
(iv) the Company shall have maintained on Closing from Export Development Canada (“EDC”) and St. ▇▇▇▇ Guarantee Insurance Company (“St. ▇▇▇▇ Guarantee”), an account receivables insurance policy (the “Receivable Insurance Policy”) insuring 90% of value of the Company’s world-wide account receivables (the “Receivables”);
(v) the Company shall have irrevocably directed EDC and St. ▇▇▇▇ Guarantee to pay the proceeds from the Receivable Insurance Policy to the holder(s) of the Series F Note shown on the Certified Holder’s List described in section 6(i)(i), in accordance with the Payment Instruction described in section 6(i)(ii), upon any claim made under the Receivable Insurance Policy;
(vi) the security interest granted by the Company in favour of each of persons shown in Schedule 3 shall have been executeddischarged or postponed and subordinated to the security interest to be granted by the Company in favour of the Subscriber;
(jvii) Each Borrower Party ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇▇▇”) shall have received provided a limited recourse guarantee (the “Guarantee”) for the Company’s obligations under the Note, secured by a pledge of 800,000 shares in the Company beneficially owned by ▇▇▇▇▇▇▇▇▇ (the “Pledged Shares”) in accordance with a share pledge agreement by ▇▇▇▇▇▇▇▇▇ in favour of the Subscriber (the “Share Pledge Agreement”);
(viii) all licenses, approvals covenants of the Company hereunder that are required to be performed on or evidence of other actions required by any Governmental Authority in connection prior to the Closing Date shall have been performed;
(ix) the Subscriber shall have been satisfied with the execution and delivery by such Borrower Party results of this Agreement or any other Loan Document or with its due diligence review on the consummation affairs of the transactions contemplated hereby and therebyCompany; and
(kx) all other documents the representations and legal matters warranties of the Company shall be true and correct as at the Closing Date.
(c) If any of the conditions set forth in connection with (a) or (b) above is not satisfied or waived prior to Closing, this subscription agreement shall terminate and the transactions contemplated by this Agreement parties shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the Agentno further obligations hereunder.
Appears in 1 contract
Sources: Subscription Agreement (Adb Systems International LTD)
Conditions of Closing. 8.1. Required Deliveries on or before (a) The Company's obligation to issue the Closing Date. On or before Notes to the Closing Date which shall occur on or before September 1, 2005, Subscriber is subject to the Agent shall receive the followingconditions that:
(ai) such issuance be conditionally accepted by the Toronto Stock Exchange (the "TSX");
(ii) the Intercreditor Agreementissuance of the Notes and the Underlying Securities are exempt from the registration requirements and prospectus filing requirements under applicable securities statutes, in form regulations, rules, policy statements and substance satisfactory to interpretation notes and by the Agentapplicable rules and policies of the TSX (collectively, duly executed, "SECURITIES LAWS"); and
(iii) the execution and in full force delivery by the Subscriber of the Termination and effect;Waiver agreement.
(b) a certificate from The Subscriber's obligation to subscribe for the Secretary of each Borrower Party (i) attesting Notes is subject to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of each Borrower Party;
(d) a certificate of status with respect to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;following conditions:
(i) the Third Amendment satisfactory completion of due diligence by the Subscriber prior to the First Lien Credit Agreement shall have been executedClosing Date;
(jii) Each Borrower Party the issue of the Notes having been approved by the board of directors of the Company;
(iii) the issue of the Notes having been conditionally approved by the TSX;
(iv) the issue of the Series C Note as payment of the Termination Fee and payment by the Company to the Subscriber on Closing of any GST applicable on the Termination Fee;
(v) the Company shall have received all licensescompleted, approvals or evidence of other actions required by any Governmental Authority in connection contemporaneously with the execution Closing hereunder, the loan transaction (the "BRICK LOAN") whereby The Brick Warehouse Corporation ("THE BRICK") will have advanced to the Company on the Closing Date a first advance of not less than $1.0 million and delivery an expense advance of not less than $0.5 million for payment of expenses related to the transaction with The Brick;
(vi) payment and satisfaction by such Borrower Party the Company of this Agreement or any other Loan Document or the Due Diligence Fees as provided herein;
(vii) payment of the fees and disbursements of the Subscriber's counsel with the consummation of respect to the transactions contemplated hereby and therebyherein (the "SUBSCRIBER COUNSEL FEE") in the amount of $25,000 to Subscriber's counsel in trust; and
(kviii) delivery of definitive agreements and all other documents and instruments required by the Subscriber including a legal matters in connection with opinion as to, among other things, resale restrictions applicable to the transactions contemplated by this Agreement shall have been deliveredNotes and the Underlying Securities, executed, or recorded and shall be in form and substance satisfactory to the AgentSubscriber and its counsel.
(c) If any of the conditions sets forth in (a) and (b) above is not satisfied or waived prior to Closing, this subscription agreement shall terminate and the parties shall have no further obligations hereunder except for the Company's obligation to pay the Due Diligence Fees and the Subscriber Counsel Fee from the Company's own funds.
Appears in 1 contract
Sources: Subscription Agreement (Adb Systems International LTD)
Conditions of Closing. 8.1. Required Deliveries on or before The closing of the Closing Date. On or before credit facilities under this Agreement is subject to satisfaction of the Closing Date which shall occur on or before September 1, 2005, the Agent shall receive the followingfollowing conditions precedent:
(a) Unless waived by all the Intercreditor AgreementLenders (or by the Administrative Agent with respect to immaterial matters or items specified in clause (v), (vi) or (xiii) below with respect to which the Borrower has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement and the Facility Guaranty, sufficient in number for distribution to the Administrative Agent, duly executed, each Lender and in full force and effectthe Borrower;
(bii) Revolving Loan Notes executed by the Borrower in favor of each Lender requesting such a Note, each in a principal amount equal to such Lender's Commitment;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender (if it requests such a Note) in the principal amount of the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the signing Loan Party as the Administrative Agent may require to evidence the identities of and the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is organized and in which its chief executive office is located, including certified copies of each Loan Parties' Organization Documents, certificates of good standing and/or qualification to engage in business;
(vi) a certificate from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered signed by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of each Borrower Party;
(d) a certificate of status with respect to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization Responsible Officer of the Borrower Partycertifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, which certificate shall indicate (B) that there is no event, circumstance, action, suit, investigation or proceeding pending or, to the best knowledge of such Borrower Party is Responsible Officer, threatened in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days any court or before any arbitrator or Governmental Authority since date of the Closing Date, such certificates Audited Financial Statements which has or could be reasonably expected to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute have a Material Adverse Effect, which certificates shall indicate that such Borrower Party is (C) the current Debt Ratings (and including a copy thereof), and (D) as to the matters described in good standing in such jurisdictionsSection 4.01(d);
(fvii) an opinion or opinions of counsel for the Borrower Parties to each Loan Party in form and substance satisfactory to the Administrative Agent;
(gviii) copies the consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended 1999, 2000 and 2001, including balance sheets, income and cash flow statements, all existing Blocked Account Agreementsaudited and opined on by independent certified public accountants of recognized national standing and prepared in conformity with GAAP, and such other financial information as the Administrative Agent shall be satisfied that all such agreements are in full force and effectmay request;
(hix) evidence that the Existing Credit Facility has been or concurrently with the Closing Date is being terminated, all indebtedness and obligations of the Borrower incurred thereunder have been, or with the initial Credit Extension hereunder on the Closing Date will be, repaid and the Borrower released from all liability thereunder except such as by their express terms survive such repayment and termination;
(x) the Agent shall be 364-Day Revolving Credit Agreement has been executed and delivered by all parties thereto and the conditions set forth in Sections 4.01 and 4.02 thereof as of the Closing Date have been satisfied that financing statements filed against or waived in accordance with its terms;
(xi) amendments to the applications and agreements for issuance of letters of credit pertaining to the Existing Letters of Credit;
(xii) a Compliance Certificate signed by a Responsible Officer of the Borrower dated as of the Closing Date demonstrating compliance with the financial covenants contained in Section 7.10 as of the end of the fiscal quarter most recently ended prior to the Closing Date;
(xiii) evidence of all Borrower Parties naming insurance required by the Loan Documents;
(xiv) an initial Revolving Loan Notice;
(xv) evidence of the current Debt Ratings; and
(xvi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, for the benefit of LendersL/C Issuer, as the secured creditor are sufficient Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent be paid on or before the Closing Date shall have received searches reflecting been paid.
(c) Unless waived by the filing Administrative Agent, the Borrower shall have paid all Attorney Costs of all the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such financing statements;additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) In the good faith judgment of the Administrative Agent and the Lenders:
(i) the Third Amendment there shall not have occurred or become known to the First Lien Credit Agreement shall have been executedAdministrative Agent or the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Administrative Agent prior to the Closing Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(jii) Each no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be likely to result in a Material Adverse Effect; and
(iii) the Borrower Party shall have received all licensesapprovals, approvals consents and waivers, and shall have made or evidence of other actions given all necessary filings and notices as shall be required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of to consummate the transactions contemplated hereby and thereby; and
without the occurrence of any default under, conflict with or violation of (kA) all other documents and legal matters in connection with any applicable law, rule, regulation, order or decree of any Governmental Authority or arbitral authority or (B) any agreement, document or instrument to which the transactions contemplated Borrower or any Subsidiary is a party or by this Agreement shall have been delivered, executed, which any of them or recorded and shall be in form and substance satisfactory to the Agenttheir properties is bound.
Appears in 1 contract
Conditions of Closing. 8.1. Required Deliveries on The effectiveness of the obligations of the Lenders to make Loans are subject to the satisfaction (or before waiver in accordance with Section 10.01) of the Closing Date. On or before the Closing Date which shall occur on or before September 1, 2005, the Agent shall receive the followingfollowing conditions:
(a) the Intercreditor Administrative Agent shall have received on the Closing Date the following:
(i) from each party hereto a counterpart of this Agreement signed on behalf of such party (which, subject to Section 10.07(b), may include any Electronic Signatures transmitted by emailed. pdf or any other electronic means that reproduces an image of an actual executed signature page of a counterpart of this Agreement);
(ii) the written opinion or opinions with respect to the Loan Documents and the transactions contemplated thereby of (A) ▇▇▇▇▇▇▇▇ ▇. ▇▇▇, General Counsel of the Company, (B) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to the Company, and (C) ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Pennsylvania counsel for the Company, in form each case, dated the Closing Date, addressed to the Administrative Agent and substance the Lenders and satisfactory to the Administrative Agent;
(iii) resolutions of the board of directors (or of the appropriate committee thereof) of the Company certified by its secretary or assistant secretary as of the Closing Date, duly executedapproving and adopting the Loan Documents to be executed by the Company and authorizing the execution and delivery thereof;
(iv) specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Company, certified by its secretary or assistant secretary;
(v) the organizational documents of the Company certified as of the Closing Date as true and correct by its secretary or assistant secretary;
(vi) a certificate issued as of a recent date by the Secretary of State or other appropriate Governmental Authority of the jurisdiction of formation of the Company as to the due existence and good standing of the Company; and
(vii) a certificate of the Company certifying that (A) as of the Closing Date, each of the representations and warranties set forth in Article V is true and correct in all material respects, (B) after giving effect to the Closing Date and all Loans to be made on the Closing Date, if any, there will be no Default or Event of Default under this Agreement, and (C) except as disclosed in full force any reports or financial statements publicly filed with the Securities and effectExchange Commission prior to the Closing Date, as of the Closing Date there shall not have occurred a material adverse change since April 2, 2022, in the business, financial position or results of operations of the Company and its Subsidiaries, taken as a whole;
(b) a certificate from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, any fees and performance of all Loan Documents expenses required to be executed and delivered by such Borrower Party paid on or before the Closing DateDate shall have been paid, and authorizing specific officers of such Borrower Party including, to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented extent invoiced at least one Business Day prior to the Closing Date, certified all fees, charges and disbursements of counsel to the Administrative Agent; and
(c) the Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation, to the extent requested by the Secretary of each Borrower Party;
(d) a certificate of status with respect Lenders at least three Business Days prior to each Borrower Party, dated within ten (10) days of the Closing Date. Without limiting the generality of the provisions of Article IX, such certificate for purposes of determining satisfaction of the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Partysatisfied with, each dated within thirty (30) days of the Closing Date, such certificates document or other matter required hereunder to be issued consented to or approved by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance acceptable or satisfactory to a Lender unless the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Administrative Agent shall have received searches reflecting the filing of all notice from such financing statements;
(i) the Third Amendment Lender prior to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the Agentproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Term Loan Agreement (V F Corp)
Conditions of Closing. 8.1. Required Deliveries on The Purchaser's obligations to purchase the Bonds are subject to fulfillment of the following conditions at or before the Closing Date. On or before the Closing Date which shall occur on or before September 1, 2005, the Agent shall receive the followingClosing:
(a) The representations of the Intercreditor AgreementIssuer and the Tenant hereunder must be true on and as of the Issue Date and must be confirmed by certificates dated as of the Closing;
(b) Neither the Issuer nor the Tenant has defaulted in the performance of any of their respective covenants hereunder;
(c) The Purchaser must receive at the Closing:
(i) an opinion of Bond Counsel, dated as of the Closing; in form and substance satisfactory to the Purchaser and its counsel;
(ii) an opinion of counsel for the Tenant, dated as of the Closing, in form and substance satisfactory to Bond Counsel and to the Agent, duly executed, Purchaser and its counsel confirming the Tenant's representations as set forth in full force and effectparagraphs (b) through (e) inclusive of Section 5 of this Bond Purchase Agreement;
(b) a certificate from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of each Borrower Party;
(d) a certificate of status with respect to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(fiii) an opinion of counsel for the Borrower Parties Issuer, dated as of the Closing, in form and substance satisfactory to Bond Counsel and to the AgentPurchaser and its counsel, confirming the Issuer's representations set forth in paragraphs (a) through (f) inclusive of Section 4 of this Bond Purchase Agreement;
(giv) copies of all existing Blocked Account Agreementsa certificate or certificates, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be satisfactory in form and substance satisfactory to Bond Counsel and the Purchaser and its counsel, of an authorized official of the Issuer dated the date of the Closing to the Agent.effect that (A) each of the representations of the Issuer set forth in Section 4 hereof is true, accurate and complete in all material respects as of the Closing, and each of the agreements of the Issuer set forth in this Bond Purchase Agreement to be complied with at or prior to the Closing has been complied with; and (B) no litigation is pending, or to such official's knowledge, threatened, to restrain or enjoin the issuance or delivery of the Bonds, or contesting or questioning the validity of the Bonds, the proceedings or authority under which they are issued, the existence of the Issuer, the authority of the Issuer to enact the Ordinance or enter into the Indenture, the Project Lease or the Bond Purchase Agreement, or the Issuer's pledge of the Project, the revenues therefrom and the Trust Estate under the Indenture as security for the payment of the Bonds, and
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions of Closing. 8.1. Required Deliveries on or before The effectiveness of this Agreement is subject to the Closing Date. On or before the Closing Date which shall occur on or before September 1, 2005, the Agent shall receive the followingfollowing conditions precedent:
(a) The Agent shall have received, on the Intercreditor Agreement, Closing Date in form and substance satisfactory to the AgentAgent and the Lenders the following:
(i) executed originals of each of this Agreement, duly executedeach Note requested by any Lender, the Guaranty and the other Loan Documents, together with all schedules and exhibits thereto in full force form and effectsubstance satisfactory to the Agent and the Lenders;
(bii) a certificate from the Secretary favorable written opinion of each Borrower Party (i) attesting special U.S. counsel with respect to enforceability and internal counsel with respect to all other matters, substantially in the resolutions form of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on Exhibit F dated the Closing Date, addressed to the Agent and authorizing specific officers of such Borrower Party the Lenders and satisfactory to execute special counsel to the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan DocumentsAgent;
(ciii) copies resolutions of the board of directors (or of the appropriate committee thereof) of each of the US Facility Borrowers and the Guarantors certified by its secretary or assistant secretary as of the Closing Date, approving and adopting the Loan Documents to be executed by such Borrower or Guarantor, and authorizing the execution and delivery thereof; specimen signatures of officers of each Borrower Party's governing documents, as amended, modified, or supplemented to and Guarantor executing the Closing DateLoan Documents, certified by the Secretary or Assistant Secretary of each such Borrower Party;
(d) a certificate of status or Guarantor, as applicable, and with respect to each Offshore Facility Borrower Party, dated within ten comparable resolutions (10or other corporate or equity holder action) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is and specimen signatures customary in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictionsfor entering into transactions of the type contemplated hereby;
(fiv) an opinion copies of counsel the Organizational Documents and Operating Documents of each US Facility Borrower and each Guarantor certified as true and correct by the secretary or assistant secretary of each US Facility Borrower or Guarantor, as applicable, and, with respect to each Offshore Facility Borrower, comparable organizational and operating documents for the jurisdiction of organization of such Borrower Parties certified by an appropriate officer of such Borrower;
(v) certificates issued as of a recent date by the Secretary of State or comparable official of the jurisdiction of the formation of each of the US Facility Borrowers and each Guarantor as to the corporate good standing of such Borrower or Guarantor, as applicable, therein, and, with respect to the Offshore Facility Borrowers, comparable evidence of legal existence of such Borrower to the extent available in form the jurisdiction of organization of such Borrower;
(vi) all fees, including all commitment fees, payable by the Borrowers on the Closing Date to the Agent or the Lenders;
(vii) financial statements of the Borrower and substance its Subsidiaries required to be delivered pursuant to Section 7.04(a)(i) hereof;
(viii) a certificate of an Authorized Representative of the Parent reasonably satisfactory to the AgentAgent and the Lenders as to the matters set forth in Section 6.01(b)(ii) through (iv) and 6.01(c)(i);
(gix) copies Payoff Letter relating to the Existing Credit Agreement from First Union National Bank together with evidence of return of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are stock certificates evidencing share of capital stock pledged in full force and effect;connection therewith; and
(hx) the such other documents, instruments, certificates and opinions as any Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment or any Lender may reasonably request on or prior to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority Closing Date in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby.
(b) Each of the following shall have occurred or be true:
(i) The Agent shall have completed all due diligence with respect to the Parent and its Subsidiaries in scope and determination satisfactory to the Agent in its sole discretion;
(ii) There shall not be any action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that (a) purports to affect the transactions contemplated hereby, (b) would reasonably be expected to have a material adverse effect on the business, operations or condition (financial or otherwise) of the Parent and its Subsidiaries taken as a whole or (c) would reasonably be expected to have a material adverse effect on the ability of the Loan Parties to perform their respective obligations hereunder or under the other Loan Documents;
(iii) The Parent and its Subsidiaries shall be in compliance with all existing financial and material contractual obligations before and immediately after giving effect to the financings and other transactions contemplated hereby;
(iv) The Parent and its Subsidiaries shall have received all government, shareholder and third-party approvals, consents and waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any applicable law, rule, regulation, order or decree of any court or other Governmental Authority or arbitral authority, (B) any Organizational Document or Operating Documents of the Parent or any Subsidiary or (C) any agreement, document or instrument to which any of the Parent or any Subsidiary is a party or by which any of them or their properties is bound, if such default, conflict or violation would reasonably be expected to result in a material adverse effect on the business, operations or condition (financial or otherwise) of the Parent and therebyits Subsidiaries taken as a whole; and all applicable waiting periods shall have expired without any action being taken or threatened in writing by any authority that could restrain, prevent or impose any material adverse conditions on the making of any Loan or other transactions contemplated hereby, and no law or regulation shall be applicable which would reasonably be expected to have a Material Adverse Effect; and
(kc) all other documents In the good faith judgment of the Agent and legal matters the Lenders:
(i) There shall not have occurred a material adverse change in connection with the transactions contemplated by this Agreement business, operations or condition (financial or otherwise) of the Parent and its Subsidiaries taken as a whole since March 31, 2001; and
(ii) Since May 9, 2001, there shall not have been delivered, executedoccurred and be continuing a material adverse change in the market for syndicated credit facilities similar in nature to the Facilities or a material disruption of, or recorded and shall be a material adverse change in, financial, banking or capital market conditions, in form and substance satisfactory to each case as determined by the AgentAgent in its reasonable discretion.
Appears in 1 contract
Sources: Credit Agreement (Technitrol Inc)
Conditions of Closing. 8.1. Required Deliveries on or before The obligations of the Closing Date. On or before Lenders hereunder are subject to the Closing Date which shall occur on or before September 1, 2005, the Agent shall receive the followingconditions precedent that:
(a) the Intercreditor AgreementAgent shall have received on the Closing Date, in form and substance satisfactory to the AgentAgent and Lenders, duly executedthe following:
(i) executed originals of each of this Agreement, the Notes, the Security Documents, the Subordination Agreements and in full force the other Loan Documents, together with all schedules and effectexhibits thereto;
(bii) a certificate from executed originals, or copies of executed originals certified by the Secretary secretary or assistant secretary of each Borrower Party the Borrower, of the CHC Transaction Documents, which shall evidence (i) attesting the consummation of the CHC Transaction as of the Closing Date on the terms provided in the Asset Purchase Agreement (without further amendment) and (ii) the placement on the Subordinated Transaction Documents (as defined in the Subordination Agreements) of the restrictive legend required by the Subordination Agreements;
(iii) the written opinion with respect to the resolutions Loan Documents, the CHC Transaction Documents and the respective transactions contemplated thereby of such special counsel to the Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Guarantors dated the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented addressed to the Closing DateAgent and the Lenders and satisfactory to ▇▇▇▇▇ ▇▇▇▇▇ Mulliss & ▇▇▇▇▇, certified by the Secretary of each Borrower Party;
(d) a certificate of status with respect to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of special counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(giv) the written opinion or opinions with respect to the Subordination Agreements and the other CHC Transaction Documents and the transactions contemplated thereby of counsel for the Sellers (which opinion or opinions may be in the form of a letter or letters stating that the Agent and the Lenders may rely upon the opinion or opinions of such counsel delivered to the Borrower or any of its Subsidiaries as if the same were addressed to them), dated the Closing Date, addressed to the Agent and the Lenders and satisfactory to ▇▇▇▇▇ ▇▇▇▇▇ Mulliss & ▇▇▇▇▇, special counsel to the Agent;
(v) copies of all existing Blocked Account Agreementsresolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each of the Guarantors certified by its secretary or assistant secretary as of the Closing Date, appointing (in the case of the Borrower) the Authorized Representative and approving and adopting the Loan Documents and CHC Transaction Documents to be executed by such Person, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with authorizing the execution and delivery thereof;
(vi) specimen signatures of officers of the Borrower and each Guarantor executing the Loan Documents on behalf of such Person, certified by the secretary or assistant secretary of the Borrower or Guarantor, as applicable;
(vii) the charter documents of the Borrower and each Guarantor certified as of a recent date by the Secretary of State of its state of incorporation;
(viii) the by-laws of the Borrower and each Guarantor certified as of the Closing Date as true and correct by the secretary or assistant secretary of the Person to whom such by-laws relate;
(ix) certificates issued as of a recent date by the Secretaries of State of the jurisdiction of incorporation of the Borrower Party and each Guarantor, as the case may be, as to the due existence and good standing of this Agreement the Borrower and each Guarantor therein;
(x) appropriate certificates of qualification to do business, good standing and, where appropriate, authority to conduct business under assumed name, issued in respect of the Borrower and each Guarantor as of a recent date by the Secretary of State or comparable official of each jurisdiction in which the failure to be qualified to do business or authorized so to conduct business could materially adversely affect the business, operations or conditions, financial or otherwise, of the Borrower or any Guarantor;
(xi) notice of appointment of the Authorized Representative;
(xii) a certificate of an Authorized Representative dated the Closing Date demonstrating compliance with the financial covenants contained in Sections 9.01 through 9.05 and 9.09(v) as of the Closing Date, substantially in the form of Exhibit I attached hereto;
(xiii) a certificate of Borrower's President, chief executive officer or chief financial officer dated the Closing Date certifying that as of the Closing Date and immediately after giving effect to the CHC Transaction, the Term Loan and Advances made as of the Closing Date (A) there does not exist any Default or Event of Default and (B) the Borrower and the Guarantors are Solvent;
(xiv) a Borrowing Base Certificate dated as of the Closing Date;
(xv) evidence of insurance required by the Loan Documents;
(xvi) if the Borrower shall request an Advance on the Closing Date, a Borrowing Notice with respect to such Advance;
(xvii) all fees payable by the Borrower on the Closing Date to the Agent, NationsBank, the Lenders and NCMI; and
(xviii) such other Loan Document documents, instruments and certificates as the Agent or any Lender may reasonably request on or prior to the Closing Date in connection with the consummation of the CHC Transaction and the transactions contemplated hereby; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) there shall not have occurred or become known to the Agent or the Lenders any material adverse change in the business, financial condition, operations, properties or prospects of the Borrower or its Subsidiaries or Affiliates since September 30, 1994;
(ii) no litigation shall be pending or threatened which would be likely to materially and adversely affect the business, financial condition, operations, properties or prospects of the Borrower or its Subsidiaries or Affiliates, or which could reasonably be expected to restrain or enjoin, impose burdensome conditions on, or otherwise materially and adversely (A) affect the ability of the Borrower and its Subsidiaries to fulfill their respective obligations under the Loan Documents or the CHC Transaction Documents, or (B) impair any interests or rights of the Agent or any Lender under the Loan Documents; and
(iii) the Borrower, its Subsidiaries and the Sellers shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby and thereby; and
by the CHC Transaction Documents without the occurrence of any default under, conflict with or violation of (kA) all other documents any applicable law, rule, regulation, order or decree of any Governmental Authority or arbitral authority or (B) any agreement, document or instrument to which any of the Borrower, any Subsidiary or any of the Sellers is a party or by which any of them or their properties is bound, except for such approvals, consents, waivers, filings and legal matters notices the receipt, making or giving of which is not material to the financial condition, business or operations of the Borrower and its Subsidiaries taken as a whole after giving effect to the CHC Transaction. Upon satisfaction of the conditions described in connection with Section 5.01, the transactions contemplated Prior Agreement shall be superseded by this Agreement shall have been deliveredAgreement, executed, or recorded and shall be in form and substance satisfactory with reasonable promptness thereafter the Agent will surrender the Prior Notes to the AgentBorrower.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Reimbursement Agreement (Vitas Healthcare Corp)
Conditions of Closing. 8.1. The obligation of each Lender to make its initial Loan hereunder shall not become effective, and the Closing Date shall not occur, until the date on which each of the following conditions is satisfied:
(a) The Administrative Agent's receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized, and that the Borrower is validly existing, in good standing and qualified to engage in business in the States of Delaware and California;
(v) a favorable opinion of ▇▇▇▇▇▇ Godward Kronish LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit E;
(vi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower (on behalf of the Borrower) certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements, subject to the SEC Reports, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on September 30, 2006, signed by a Responsible Officer of the Borrower (on behalf of the Borrower); and
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Deliveries Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date. On or before Date shall have been paid.
(c) Unless waived by the Closing Date which shall occur on or before September 1, 2005Administrative Agent, the Agent Borrower shall receive the following:
(a) the Intercreditor Agreementhave paid all fees, in form charges and substance satisfactory disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent, duly executed, and in full force and effect;
(b) a certificate from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required extent invoiced prior to be executed and delivered by such Borrower Party or on the Closing Date, and authorizing specific officers plus such additional amounts of such Borrower Party to execute the same fees, charges and (ii) certifying the names and true signatures of the officers disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented to and the Closing Date, certified by the Secretary of each Borrower Party;Administrative Agent).
(d) a certificate of status with respect to each Borrower PartyThe Closing Date shall have occurred on or before November 30, dated within ten (10) days 2006. Without limiting the generality of the Closing Dateprovisions of Section 9.04, such certificate for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Partysatisfied with, each dated within thirty (30) days of the Closing Date, such certificates document or other matter required thereunder to be issued consented to or approved by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance acceptable or satisfactory to a Lender unless the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Administrative Agent shall have received searches reflecting the filing of all notice from such financing statements;
(i) the Third Amendment Lender prior to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the Agentproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Ebay Inc)
Conditions of Closing. 8.1. Required Deliveries on The Underwriter's obligation to --------------------- purchase the Bonds is subject to fulfillment of the following conditions at or before the Closing Date. On or before the Closing Date which shall occur on or before September 1, 2005, the Agent shall receive the followingClosing:
(a) The Issuer's and the Intercreditor Agreement, in form Borrower's representations hereunder shall be true on and substance satisfactory to as of the Agent, duly executed, Closing Date and in full force and effect;shall be confirmed by certificates at Closing.
(b) a certificate from Neither the Secretary Issuer nor the Borrower shall have defaulted in any of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;their covenants hereunder.
(c) The Underwriter shall have received:
(i) original executed copies (or photocopies thereof) of each Borrower Party's governing documentsthe Indenture, as amendedthe Loan Agreement, modifiedthe Letter of Credit, the Reimbursement Agreement, the Remarketing Agreement and all other documents executed in connection therewith or supplemented delivered at Closing;
(ii) opinions of Bond Counsel dated the Closing Date with respect to the matters set forth in Exhibits A, B and C attached hereto;
(iii) an opinion of Issuer Counsel dated the Closing Date, certified by Date with respect to the Secretary matters set forth in Exhibit D attached hereto;
(iv) an opinion or opinions of each Borrower PartyCounsel dated the Closing Date with respect to the matters set forth in Exhibit E attached hereto;
(v) an opinion of Bank Counsel dated the Closing Date with respect to the matters set forth in Exhibit F attached hereto;
(vi) an opinion of Underwriter Counsel dated the Closing Date with respect to the matters set forth in Exhibit G attached hereto; and
(vii) a certificate and agreement of the Bank dated the Closing Date in the form set forth in Exhibit H attached hereto.
(d) a certificate of status At Closing there shall not have been any adverse change with respect to each Borrower Partythe Project or the financing thereof as contemplated by the Official Statement and this Bond Purchase Agreement or in the business, dated within ten (10) days property or financial condition of the Closing DateBorrower, such certificate to be issued except as set forth in or contemplated by the appropriate officer Official Statement, which, in the judgment of the jurisdiction of organization Underwriter, is material and makes it inadvisable to proceed with the sale of the Borrower PartyBonds; and the Underwriter shall have received certificates that no material adverse change has occurred or, which certificate shall indicate that if such Borrower Party is in good standing in such jurisdiction;a change has occurred, full information with respect thereto.
(e) certificates of status with respect The Underwriter shall receive such documentation as it may reasonably request to each evidence that the Borrower Party, each dated within thirty (30) days has received all necessary state and local licenses and approvals from applicable state and local governmental authorities required on the part of the Closing Date, such certificates Borrower to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority obtained in connection with the execution and delivery by such Borrower Party of the Loan Agreement and this Bond Purchase Agreement or any other Loan Document or with and the Borrower's consummation of the transactions contemplated hereby thereby and thereby; andby the Official Statement.
(kf) The Underwriter shall receive such additional documentation as it may reasonably request to evidence compliance with applicable law, the validity of the Resolutions, the Bonds, the Indenture, the Loan Agreement, the Letter of Credit, the Reimbursement Agreement, the Remarketing Agreement, this Bond Purchase Agreement and all other documents and legal matters delivered by the Borrower in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded financing of the Project and shall be in form to demonstrate the status of the offering of the Bonds under the Securities Act and substance satisfactory to the Agentexclusion of the interest on the Bonds from gross income for federal income tax purposes.
Appears in 1 contract
Sources: Bond Purchase Agreement (Innovative Solutions & Support Inc)
Conditions of Closing. 8.1. Required Deliveries The Closing and the Issuer’s and Subscriber's participation in this Offering and purchase of the Subscription Receipts is conditional upon the following, all of which must be met or waived by the Subscriber and the Issuer before the respective condition dates as set out herein:
(a) on or before the Closing Date. On or before the Closing Date which shall occur on or before September 1, 2005, the Agent Issuer and the Subscriber shall receive enter into an investor rights agreement that will provide the followingSubscriber with the following rights:
(ai) as long as the Intercreditor AgreementSubscriber owns at least 10% of the issued and outstanding Common Shares on a fully diluted basis (or Subscription Receipts, in form or a combination of Subscription Receipts and substance satisfactory Common Shares, entitling the holder to receive at least 10% of the issued and outstanding Common Shares on a fully diluted basis), allow the Subscriber to nominate one director to the Agentboard of directors of the Issuer and as long as the Subscriber owns at least 31% of the issued and outstanding Common Shares on a fully diluted basis, duly executedallow the Subscriber to nominate two directors to the board of directors of the Issuer;
(ii) provide the Subscriber with the opportunity to subscribe for additional common shares of the Issuer upon the Issuer achieving certain milestones; and
(iii) provides the Subscriber with the right to participate in future equity financings by the Company on a pro rata basis, provided that the Subscriber owns at least 10% of the Common Shares on a fully diluted basis (or Subscription Receipts, or a combination of Subscription Receipts and Common Shares, entitling the holder to receive at least 10% of the issued and outstanding Common Shares on a fully diluted basis), all as further detailed in full force and effectthe Term Sheet. In addition, pursuant to such investor rights agreement, the Subscriber shall be bound by the “standstill” provisions set out in the Term Sheet;
(b) a certificate from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on or before the Closing Date, the Subscriber and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying Issuer will enter into a cannabis supply agreement on the names and true signatures of terms set out in the officers of such Borrower Party authorized to sign such Loan DocumentsTerm Sheet;
(c) copies of each Borrower Party's governing documents, as amended, modified, on or supplemented to before the Closing Date, certified by the Secretary Issuer and Au▇▇▇▇ ▇▇▇▇▇▇▇ ▇rojects Inc., a wholly owned subsidiary of each Borrower Partythe Subscriber, shall enter into a consulting and maintenance services agreement on the terms set out in the Term Sheet;
(d) a certificate of status with respect to each Borrower Party, dated within ten (10) days of on or before the Closing Date, such certificate the Issuer shall provide evidence satisfactory to be issued by the appropriate officer of Subscriber, acting reasonably, that the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;Shareholders' Agreement has been terminated; and
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of on or before the Closing Date, such certificates to be issued by the appropriate officer of Subscriber and the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute Subscriber will enter into a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance Subscription Receipts subscription agreement on terms satisfactory to each party and the Agent;
(g) copies Subscriber's board of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent directors shall have received searches reflecting approved the filing of all such financing statements;
(i) Subscriber's participation in this Offering and the Third Amendment investor rights agreement, the cannabis supply agreement and the consulting and maintenance services agreement referred to above. For clarity, if the above noted conditions are not met on or before January 12, 2018, then this Subscription Agreement will become void and the parties will have no further obligations to each other pursuant to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party terms of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the AgentSubscription Agreement.
Appears in 1 contract
Conditions of Closing. 8.1. Required Deliveries on or before the Closing Date. On or before the Closing Date which shall occur on or before September 1, 2005, the Agent shall receive the following:
(a) the Intercreditor Agreement, in form and substance satisfactory to the Agent, duly executed, and in full force and effect;
(b) a certificate from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of each Borrower Party;
(d) a certificate of status with respect to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory to the AgentParties;
(g) copies of all existing Blocked Account Agreements, Joinder and Agent Acceptance Agreements in the form attached hereto as Exhibit C shall be satisfied have been executed and delivered by Lenders that all such agreements are executed Support Agreements in full force and effectconnection with the Exchange Offer;
(h) the Agent Administrative Borrower shall be satisfied that file financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient creditor, in order to create perfect a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent the Administrative Borrower shall have received request searches reflecting the filing of all such financing statementsstatements (such searches to be delivered to the Agent promptly after the Closing);
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded recorded. The execution and delivery to Agent at the Closing of the Joinder and Acceptance Agreement attached hereto as Exhibit C by Majority Lenders shall be in form constitute approval and substance satisfactory acceptance of the forms of each of the documents delivered as required pursuant to this Article VIII and the Agentdirection to Agent to accept each such document.
Appears in 1 contract
Sources: Credit Agreement (Salton Inc)
Conditions of Closing. 8.1. Required Deliveries on The obligation of the Lenders to make the initial Advance under the Revolving Credit Facility or before an initial Competitive Bid Loan, of the Closing Date. On or before Swing Line Lender to make any Swing Line Loan, and of the Closing Date which shall occur on or before September 1, 2005, L/C Issuers to issue any Letter of Credit is subject to the Agent shall receive the followingconditions precedent that:
(a) the Intercreditor AgreementAgent shall have received on the Closing Date, in form and substance satisfactory to the Agent, duly executedthe following:
(i) executed originals of each of this Agreement, any Notes requested prior to the Closing Date and in full force the other Loan Documents, together with all schedules and effectexhibits thereto;
(bii) a certificate from the Secretary favorable written opinion or opinions with respect to the Loan Documents and the transactions contemplated thereby of each Borrower Party (i) attesting C▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President & General Counsel of the Borrower and (ii) D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, special counsel to the resolutions of such Borrower Party's board of directors authorizing its executionBorrower, deliveryin each case, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on dated the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented addressed to the Closing DateAgent and the Lenders and satisfactory to the Agent and to Shearman & Sterling LLP, certified by the Secretary of each Borrower Party;
(d) a certificate of status with respect to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of special counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(giii) copies resolutions of all existing Blocked Account Agreementsthe board of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower certified by its secretary or assistant secretary or any Authorized Representative as of the Closing Date, approving and Agent shall adopting the Loan Documents to be satisfied that all such agreements are in full force executed by the Borrower and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with authorizing the execution and delivery thereof;
(iv) specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower, certified by such Borrower Party of this Agreement the secretary or assistant secretary or any Authorized Representative;
(v) the Organizational Documents of the Borrower certified as of a recent date by the Secretary of State or other Loan Document appropriate Governmental Authority of the jurisdiction of its organization or by an Authorized Representative;
(vi) the by-laws or articles of association of the Borrower certified as of the Closing Date as true and correct by its secretary or assistant secretary or any Authorized Representative;
(vii) to the extent applicable and available in the relevant jurisdiction, a certificate issued as of a recent date by the Secretary of State or other appropriate Governmental Authority of the jurisdiction of formation of the Borrower as to the due existence and good standing of the Borrower;
(viii) notice of appointment of the initial Authorized Representative;
(ix) a certificate of an Authorized Representative dated the Closing Date demonstrating compliance with the covenants contained in Sections 8.1, 8.2(i) and 8.3(e) as of the end of the fiscal quarter for which financial statements are publicly available most recently ended prior to the Closing Date, substantially in the form of Exhibit G hereto;
(x) a certificate of the Borrower certifying that (A) as of the Closing Date, each of the representations and warranties set forth in Article VI is true and correct, (B) after giving effect to the Closing Date and all Loans to be made on the Closing Date, there will be no Default or Event of Default under this Agreement, and (C) except as disclosed in any reports or financial statements filed with the Securities and Exchange Commission on or prior to September 21, 2007, as of the Closing Date there shall not have occurred a material adverse change since December 30, 2006 in the business, financial position or results of operations of the Borrower and its Subsidiaries, taken as a whole;
(xi) evidence that the Credit Agreement dated as of September 25, 2003 among the Borrower, the lenders parties thereto and Bank of America, as administrative agent, has been or concurrently with the Closing Date is being terminated (and each of the Lenders that is a party to such Credit Agreement hereby waives any requirement of prior notice for such termination); and
(xii) such other documents, instruments, certificates and opinions as the Agent or the Required Lenders may reasonably request on or prior to the Closing Date in connection with the consummation of the transactions contemplated hereby and thereby; andhereby.
(kb) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Agent, the Borrower shall have paid all other documents fees, charges and legal matters in connection disbursements of counsel to the Agent (directly to such counsel if requested by the Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Agent). Without limiting the generality of the provisions of the last paragraph of Section 10.3, for purposes of determining compliance with the transactions contemplated by conditions specified in this Section 5.1, each Lender that has signed this Agreement shall be deemed to have been deliveredconsented to, executedapproved or accepted or to be satisfied with, each document or recorded and shall other matter required thereunder to be in form and substance consented to or approved by or acceptable or satisfactory to a Lender unless the AgentAgent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (V F Corp)
Conditions of Closing. 8.1. Required Deliveries on or before The obligations of the Closing Date. On or before Lenders to make the Closing Date which shall occur on or before September 1initial Revolving Loans, 2005, of the Agent shall receive Swing Line Lenders to make Swing Line Loans and of the followingL/C Issuers to issue Letters of Credit are subject to the conditions precedent that:
(a) the Intercreditor Administrative Agent shall have received on the Closing Date the following:
(i) executed originals of each of this Agreement, any Notes requested prior to the Closing Date and the other Loan Documents, together with all schedules and exhibits thereto;
(ii) the written opinion or opinions with respect to the Loan Documents and the transactions contemplated thereby of (A) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Company, (B) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to the Company, (C) ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Pennsylvania counsel for the Company, (D) ▇▇▇▇▇ & ▇▇▇▇▇ LLP, Luxembourg counsel for the Company, (E) ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Belgian counsel for the Company, and (F) Velo & Associati, Swiss counsel for the Company, in form each case, dated the Closing Date, addressed to the Administrative Agent and substance the Lenders and satisfactory to the Administrative Agent and to Cravath, Swaine & ▇▇▇▇▇ LLP, special counsel to the Administrative Agent, duly executed, and in full force and effect;
(biii) resolutions of the board of directors or other appropriate governing body (or of the appropriate committee thereof) of each Borrower certified by its secretary or assistant secretary or any Authorized Representative as of the Closing Date, approving and adopting the Loan Documents to be executed by such Borrower and authorizing the execution and delivery thereof; Table of Contents
(iv) specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of each Borrower, certified by its secretary or assistant secretary or any Authorized Representative;
(v) the Organizational Documents of each Borrower certified as of a recent date by the Secretary of State or other appropriate Governmental Authority of the jurisdiction of its organization or by an Authorized Representative;
(vi) the by-laws or articles of association of each Borrower certified as of the Closing Date as true and correct by its secretary or assistant secretary or any Authorized Representative;
(vii) to the extent applicable and available in the relevant jurisdiction, a certificate issued as of a recent date by the Secretary of State or other appropriate Governmental Authority of the jurisdiction of formation of each Borrower as to the due existence and good standing of such Borrower;
(viii) notice of appointment of the initial Authorized Representative(s);
(ix) a certificate from of an Authorized Representative dated the Secretary Closing Date demonstrating compliance with the covenants contained in Sections 7.01, 7.02(j) and 7.03(f) as of each Borrower Party (i) attesting the end of the fiscal quarter for which financial statements are publicly available most recently ended prior to the resolutions Closing Date, substantially in the form of such Borrower Party's board Exhibit F hereto;
(x) a certificate of directors authorizing its executionthe Company certifying that (A) as of the Closing Date, deliveryeach of the representations and warranties set forth in Article V is true and correct in all material respects, (B) after giving effect to the Closing Date and performance of all Loan Documents required Loans to be executed and delivered by such Borrower Party made on the Closing Date, and authorizing specific officers there will be no Default or Event of such Borrower Party to execute the same Default under this Agreement, and (iiC) certifying except as disclosed in any reports or financial statements filed with the names Securities and true signatures Exchange Commission on or prior to March 17, 2015, as of the officers Closing Date there shall not have occurred a material adverse change since January 3, 2015, in the business, financial position or results of such Borrower Party authorized to sign such Loan Documentsoperations of the Company and its Subsidiaries, taken as a whole;
(cxi) copies evidence that the Existing Credit Agreement has been, or concurrently with the Closing Date is being, terminated (and each of each Borrower Party's governing the Lenders that is a party to any such Existing Credit Agreement hereby waives any requirement of prior notice for such termination), and that all amounts outstanding or accrued for the accounts of the lenders thereunder have been, or concurrently with the Closing Date are being, paid;
(xii) such other documents, instruments, certificates and opinions as amended, modified, the Administrative Agent or supplemented the Required Lenders may reasonably request on or prior to the Closing Date, certified by the Secretary of each Borrower Party;
(d) a certificate of status with respect to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority Date in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby hereby; Table of Contents
(xiii) any fees required to be paid on or before the Closing Date shall have been paid, including, to the extent invoiced at least one Business Day prior to the Closing Date, all fees, charges and therebydisbursements of counsel to the Administrative Agent; and
(kxiv) the Lenders shall have received all documentation and other documents information required by bank regulatory authorities under applicable “know your customer” and legal matters in connection anti-money laundering rules and regulations, including the USA PATRIOT Act to the extent requested by such Lenders at least three Business Days prior to the Closing Date. Without limiting the generality of the provisions of Article IX, for purposes of determining compliance with the transactions contemplated by conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have been deliveredconsented to, executedapproved, accepted or recorded and shall to be in form and substance satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the AgentAdministrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Closing. 8.1. Required Deliveries The obligation of each Lender to make its initial Loan and of each Issuing Bank to issue any Letters of Credit hereunder shall not become effective, and the Closing Date shall not occur, until the date on which each of the following conditions is satisfied:
(a) The Administrative Agent’s receipt of the following, each properly executed by a Responsible Officer of the Borrower and/or the Guarantors, as applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each of the Borrower and each of the Guarantors as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each of the Borrower and each Guarantor is duly organized, and that each of the Borrower and each Guarantor is validly existing, in good standing in its state of organization;
(v) a favorable written opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower and the Guarantors, addressed to the Administrative Agent and each Lender and dated as of the Closing Date, covering such matters relating to the Borrower, the Guarantors, this Agreement or other matters incident to the transactions contemplated by this Agreement as the Administrative Agent may reasonably require;
(vi) executed counterparts of (1) the Collateral Agreement, (2) the First Lien/Second Lien Intercreditor Agreement Joinder and (3) the Closing Date Intercreditor Agreement;
(vii) copies of the certificates (including attachments thereto) delivered by the Borrower to the Designated Senior Representative and the Junior Representative (as such terms are defined in the First Lien/Second Lien Intercreditor Agreement) pursuant to Sections 8.09(ii) and (iv) of the First Lien/Second Lien Intercreditor Agreement;
(viii) a Perfection Certificate executed by each Loan Party;
(ix) evidence that the Designated Senior Representative (as defined in the First Lien Intercreditor Agreement) on behalf of the Administrative Agent shall have received all stock certificates representing the issued and outstanding Equity Interests of each Subsidiary of the Borrower required by the Collateral Agreement to be delivered to the Administrative Agent (or its designee) with endorsements and stock powers in form and substance reasonably satisfactory to the Administrative Agent; and
(x) a certificate signed by a Responsible Officer of the Borrower (on behalf of the Borrower) certifying that the conditions specified in Sections 4.02(a) and (b) have been satisfied.
(b) Any fees required to be paid on or before the Closing Date. On or before the Closing Date which shall occur on or before September 1, 2005, the Agent shall receive the following:
(a) the Intercreditor Agreement, in form and substance satisfactory pursuant to the Agent, duly executedEngagement Letter, and in full force and effect;
(b) a certificate from the Secretary of each Borrower Party (i) attesting to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents expenses required to be executed and delivered reimbursed by such Borrower Party on the Closing DateBorrower, and authorizing specific officers of such Borrower Party to execute the same and for which invoices have presented at least three (ii3) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented Business Days prior to the Closing Date, certified by the Secretary of each Borrower Party;shall have been paid.
(dc) a certificate of status with respect to each Borrower PartyThe Administrative Agent and the Lenders shall have received, dated within ten (10) days at least five Business Days in advance of the Closing Date, such certificate all documentation and other information as is reasonably requested in writing at least ten Business Days prior to be issued the Closing Date by the appropriate officer of Administrative Agent or the jurisdiction of organization of Lenders about the Borrower PartyLoan Parties and required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect including the Patriot Act and at least three days prior to each Borrower Party, each dated within thirty (30) days of the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such certificates Loan Party.
(d) The Administrative Agent shall have received a certificate from the Borrower’s insurance broker or other evidence satisfactory to it that all insurance required to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure maintained pursuant to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party Section 6.07 is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) effect and that the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Administrative Agent, for the benefit of Lendersthe Secured Parties, has been named as additional insured and loss payee thereunder to the extent required under Section 6.07; provided, that any requirement under this clause (d) shall not be required to be satisfied on the Closing Date and shall not be a condition to the availability of the initial Loans on the Closing Date but shall be required to be satisfied within ninety (90) days following the Closing Date or such later date as the secured creditor are sufficient Administrative Agent may reasonably agree in its sole discretion. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender and Issuing Bank that has signed this Agreement (and each such Lender’s or Issuing Bank’s Affiliates, successors and/or assigns) shall be deemed to create have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a second priority security interest in all Collateral, except as otherwise permitted herein, Lender and Issuing Bank unless the Administrative Agent shall have received searches reflecting the filing of all notice from such financing statements;
(i) the Third Amendment Lender prior to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the Agentproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Closing. 8.1. Required Deliveries on or before The obligation of the Closing Date. On or before Lenders to make the Closing Date which shall occur on or before September 1, 2005, Revolving Credit Facility available to any Borrower is subject to the Agent shall receive the followingconditions precedent that:
(a) the Intercreditor AgreementAgent shall have received on the Closing Date, in form and substance satisfactory to the AgentAgent and Lenders, duly executedthe following:
(i) executed originals of each of this Agreement, the Notes, the initial Facility Guaranties, the initial Security Instruments and in full force the other Loan Documents, together with all schedules and effectexhibits thereto;
(bii) a certificate from the Secretary of each Borrower Party (i) attesting favorable written opinion or opinions with respect to the resolutions of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required and the transactions contemplated thereby of special counsel to be executed and delivered by such Borrower Party on the Credit Parties dated the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented addressed to the Closing DateAgent (on behalf of itself and the Lenders), certified by substantially in the Secretary form of each Borrower Party;
(d) a certificate of status with respect Exhibit G-1 or otherwise reasonably satisfactory to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of special counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(giii) copies resolutions of all existing Blocked Account Agreementsthe boards of directors or other appropriate governing body (or of the appropriate committee thereof) of UniCapital and each Credit Party (or, in the case of a Credit Party that is a trust, resolutions of the appropriate board or committee of each trustee thereof) certified by its secretary or assistant secretary as of the Closing Date, approving and adopting the Loan Documents to be executed by such Person, and Agent shall be satisfied that all such agreements are in full force authorizing the execution and effectdelivery thereof;
(hiv) specimen signatures of officers of UniCapital and each of the Credit Parties executing the Loan Documents on behalf of UniCapital or such Credit Party, certified by the secretary or assistant secretary of UniCapital or such Credit Party;
(v) the Agent shall Organizational Documents of UniCapital and each of the Credit Parties and each of the trustees for each UniCapital Subsidiary Trust certified as of a recent date by the Secretary of State or comparable official of its jurisdiction of organization (provided that the trust agreement of a UniCapital Subsidiary Trust may be satisfied that certified by the secretary or assistant secretary of its Beneficial Owner);
(vi) Operating Documents of UniCapital and each of the Credit Parties and each of the trustees for each UniCapital Subsidiary Trust certified as of the Closing Date as true and correct by its secretary or assistant secretary;
(vii) certificates issued as of a recent date by the Secretaries of State or comparable officials of the respective jurisdictions of formation of UniCapital and each of the Credit Parties (excluding UniCapital Subsidiary Trusts, but including each trustee thereof) as to the due existence and good standing of such Person;
(viii) appropriate certificates of qualification to do business, good standing and, where appropriate, authority to conduct business under assumed name, issued in respect of UniCapital and each of the Credit Parties (excluding UniCapital Subsidiary Trusts, but including each trustee thereof) as of a recent date by the Secretary of State or comparable official of each jurisdiction in which the failure to be qualified to do business or authorized so to conduct business could have a Material Adverse Effect;
(ix) notice of appointment of the initial Authorized Representative(s);
(x) fully-executed Uniform Commercial Code financing statements filed against appropriate for filing in all Borrower Parties naming Agent, for places required by applicable law to perfect the benefit Liens of Lenders, the Agent under the Security Instruments as the secured creditor are sufficient a first priority Lien as to create items of Collateral in which a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting may be perfected by the filing of all such financing statements;, and such other documents and/or evidence of other actions as may be necessary under applicable law to perfect the Liens of the Agent under the Security Instruments as a first priority Lien in and to such other Collateral as the Agent may require, including without limitation:
(1) the delivery by the Borrowers of all stock certificates and other certificates, if any, evidencing ownership of any Pledged Interests, accompanied in each case by duly executed stock or transfer powers (or other appropriate transfer documents) in blank affixed thereto; and
(2) the delivery by the Borrowers of "control agreements" that have been executed by the respective issuers (and consented to by the respective Credit Parties) with respect to any uncertificated Pledged Interests; and
(xi) evidence that all fees payable by the Borrowers on the Closing Date to the Agent, NMS and the Lenders have been paid in full; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) the Third Amendment there shall not have occurred or become known to the First Lien Agent or the Lenders any event, condition, situation or status since the date of the information contained in the pro forma projections of UniCapital and its subsidiaries, giving effect to the "Related Acquisition" (as defined in the UniCapital Revolving Credit Agreement shall have been executedAgreement), for the fiscal years ending December 31, 1998, 1999 and 2000, which has had or could reasonably be expected to result in a Material Adverse Effect;
(jii) Each Borrower Party no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be likely to result in a Material Adverse Effect; and
(iii) UniCapital and the Credit Parties shall have received all licensesapprovals, approvals consents and waivers, and shall have made or evidence of other actions given all necessary filings and notices as shall be required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of to consummate the transactions contemplated hereby and thereby; and
without the occurrence of any default under, conflict with or violation of (kA) all other documents and legal matters in connection with any applicable law, rule, regulation, order or decree of any Governmental Authority or arbitral authority or (B) any agreement, document or instrument to which any of the transactions contemplated Credit Parties is a party or by this Agreement shall have been delivered, executed, which any of them or recorded and shall be in form and substance satisfactory to the Agenttheir properties is bound.
Appears in 1 contract
Sources: Credit Agreement (Unicapital Corp)
Conditions of Closing. 8.1. Required Deliveries on The obligation of the Lenders to make the initial Advance under the Revolving Credit Facility or before an initial Competitive Bid Loan, of the Closing Date. On or before Swing Line Lender to make any Swing Line Loan, and of the Closing Date which shall occur on or before September 1, 2005, L/C Issuers to issue any Letter of Credit is subject to the Agent shall receive the followingconditions precedent that:
(a) the Intercreditor AgreementAgent shall have received on the Closing Date, in form and substance satisfactory to the Agent, duly executedthe following:
(i) executed originals of each of this Agreement, any Notes requested prior to the Closing Date and in full force the other Loan Documents, together with all schedules and effectexhibits thereto;
(bii) a certificate from the Secretary favorable written opinion or opinions with respect to the Loan Documents and the transactions contemplated thereby of each Borrower Party (i) attesting ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President & General Counsel of the Borrower and (ii) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to the resolutions of such Borrower Party's board of directors authorizing its executionBorrower, deliveryin each case, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on dated the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(c) copies of each Borrower Party's governing documents, as amended, modified, or supplemented addressed to the Closing DateAgent and the Lenders and satisfactory to the Agent and to Shearman & Sterling LLP, certified by the Secretary of each Borrower Party;
(d) a certificate of status with respect to each Borrower Party, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of special counsel for the Borrower Parties in form and substance satisfactory to the Agent;
(giii) copies resolutions of all existing Blocked Account Agreementsthe board of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower certified by its secretary or assistant secretary or any Authorized Representative as of the Closing Date, approving and Agent shall adopting the Loan Documents to be satisfied that all such agreements are in full force executed by the Borrower and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with authorizing the execution and delivery thereof;
(iv) specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower, certified by such Borrower Party of this Agreement the secretary or assistant secretary or any Authorized Representative;
(v) the Organizational Documents of the Borrower certified as of a recent date by the Secretary of State or other Loan Document appropriate Governmental Authority of the jurisdiction of its organization or by an Authorized Representative;
(vi) the by-laws or articles of association of the Borrower certified as of the Closing Date as true and correct by its secretary or assistant secretary or any Authorized Representative;
(vii) to the extent applicable and available in the relevant jurisdiction, a certificate issued as of a recent date by the Secretary of State or other appropriate Governmental Authority of the jurisdiction of formation of the Borrower as to the due existence and good standing of the Borrower;
(viii) notice of appointment of the initial Authorized Representative;
(ix) a certificate of an Authorized Representative dated the Closing Date demonstrating compliance with the covenants contained in Sections 8.1, 8.2(i) and 8.3(e) as of the end of the fiscal quarter for which financial statements are publicly available most recently ended prior to the Closing Date, substantially in the form of Exhibit G hereto;
(x) a certificate of the Borrower certifying that (A) as of the Closing Date, each of the representations and warranties set forth in Article VI is true and correct, (B) after giving effect to the Closing Date and all Loans to be made on the Closing Date, there will be no Default or Event of Default under this Agreement, and (C) except as disclosed in any reports or financial statements filed with the Securities and Exchange Commission on or prior to September 21, 2007, as of the Closing Date there shall not have occurred a material adverse change since December 30, 2006 in the business, financial position or results of operations of the Borrower and its Subsidiaries, taken as a whole;
(xi) evidence that the Credit Agreement dated as of September 25, 2003 among the Borrower, the lenders parties thereto and Bank of America, as administrative agent, has been or concurrently with the Closing Date is being terminated (and each of the Lenders that is a party to such Credit Agreement hereby waives any requirement of prior notice for such termination); and
(xii) such other documents, instruments, certificates and opinions as the Agent or the Required Lenders may reasonably request on or prior to the Closing Date in connection with the consummation of the transactions contemplated hereby and thereby; andhereby.
(kb) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Agent, the Borrower shall have paid all other documents fees, charges and legal matters in connection disbursements of counsel to the Agent (directly to such counsel if requested by the Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Agent). Without limiting the generality of the provisions of the last paragraph of Section 10.3, for purposes of determining compliance with the transactions contemplated by conditions specified in this Section 5.1, each Lender that has signed this Agreement shall be deemed to have been deliveredconsented to, executedapproved or accepted or to be satisfied with, each document or recorded and shall other matter required thereunder to be in form and substance consented to or approved by or acceptable or satisfactory to a Lender unless the AgentAgent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (V F Corp)
Conditions of Closing. 8.1. Required Deliveries on or before the Closing Date. On or before The obligation of each Lender to make its initial Loan hereunder shall not become effective, and the Closing Date shall not occur, until the date on which shall occur on or before September 1, 2005, each of the Agent shall receive the followingfollowing conditions is satisfied:
(a) The Administrative Agent’s receipt of the Intercreditor Agreementfollowing, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, duly executed, each Lender and in full force and effectthe Borrower;
(bii) a certificate from Note executed by the Secretary Borrower in favor of each Borrower Party Lender requesting a Note;
(iiii) attesting to the such certificates of resolutions or other action, incumbency certificates and/or other certificates of such Borrower Party's board of directors authorizing its execution, delivery, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (ii) certifying the names and true signatures Responsible Officers of the officers Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of such Borrower Party each Responsible Officer thereof authorized to sign such act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(civ) copies such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized, and that the Borrower is validly existing, in good standing and qualified to engage in business in the States of each Borrower Party's governing documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of each Borrower PartyDelaware and California;
(dv) a certificate favorable written opinion of status with respect Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Borrower Party, Lender and dated within ten (10) days as of the Closing Date, covering such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Party, which certificate shall indicate that such Borrower Party is in good standing in such jurisdiction;
(e) certificates of status with respect to each Borrower Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(f) an opinion of counsel for the Borrower Parties in form and substance satisfactory matters relating to the Agent;
(g) copies of all existing Blocked Account AgreementsBorrower, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agentthis Agreement, for the benefit of Lenders, as the secured creditor are sufficient or other matters incident to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement as the Administrative Agent may reasonably require;
(vi) a certificate signed by a Responsible Officer of the Borrower (on behalf of the Borrower) certifying that the conditions specified in Sections 4.02(a) and (b) have been satisfied without giving effect to the first parenthetical in such Section 4.02(a); and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been deliveredpaid.
(c) The Administrative Agent shall have received reasonably satisfactory evidence that the Existing Credit Agreement, executedshall have been terminated, all amounts due thereunder shall have been paid in full and all letters of credit outstanding thereunder shall have expired (or recorded and shall be in form and substance other arrangements satisfactory to the Agentapplicable issuing banks shall have been made).
(d) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement (and each such Lender’s Affiliates, successors and/or assigns) shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Ebay Inc)
Conditions of Closing. 8.1. Required Deliveries on or before The Lenders shall not be required to make the Closing Date. On or before initial Credit Extension unless each of the Closing Date which shall occur on or before September 1, 2005, the following conditions is satisfied:
(a) The Administrative Agent shall receive have received executed counterparts of each of the following:
(ai) the Intercreditor this Agreement, in form and substance satisfactory to the Agent, duly executed, and in full force and effect;
(bii) any Notes requested by a Lender pursuant to Section 2.13;
(iii) the Material Subsidiary Guaranty;
(iv) a certificate of the Secretary or an Assistant Secretary of each Loan Party certifying (A) that there have been no changes in the charter document of such Loan Party, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization, since the date of the certification thereof by such governmental entity, (B) as to the bylaws, operating agreement or other organizational document, as attached thereto, of such Loan Party as in effect on the date of such certification, (C) as to resolutions of the board of directors or other governing body of such Loan Party authorizing the execution, delivery and performance of each Loan Document to which it is a party, (D) as to a good standing certificate (or analogous documentation if applicable) for such Loan Party from the Secretary of each Borrower Party State (ior analogous governmental entity) attesting of the jurisdiction of its organization as of a recent date, to the resolutions of extent generally available in such Borrower Party's board of directors authorizing its execution, deliveryjurisdiction, and performance of all Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the same and (iiE) certifying the names and true signatures of the incumbent officers of such Borrower each Loan Party authorized to sign the Loan Documents to which it is a party, and (in the case of the Borrower) authorized to request a Credit Extension;
(v) a certificate, signed by an Authorized Officer of the Borrower, stating that on the Closing Date (A) no Default or Event of Default has occurred and is continuing, (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier or be qualified as to “Adverse Event”, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier or are not qualified as to “Adverse Event”, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) that the conditions precedent set forth in Section 4.1(d) are satisfied as of such date; and
(vi) a written opinion of the Loan Documents;Parties’ counsel, in form and substance acceptable to the Administrative Agent, addressed to the Lenders.
(b) the Administrative Agent shall have received evidence satisfactory to it of the payment of all interest, fees and premiums, if any, on all loans and other extensions of credit outstanding under the Existing Credit Agreement.
(c) copies The Administrative Agent’s Fee Letter and payment of each Borrower Party's governing documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of each Borrower Party;all fees and reimbursements payable hereunder and thereunder.
(d) a certificate There shall not have occurred an Adverse Event since December 31, 2023.
(e) Upon the reasonable request of status with respect to each Borrower Party, dated within any Lender made at least ten (10) days of prior to the Closing Datedate hereof, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower Partyshall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and Anti-Money Laundering Laws, which certificate shall indicate that such Borrower Party is including the PATRIOT Act, in good standing in such jurisdiction;
each case at least five (e) certificates of status with respect to each Borrower Party, each dated within thirty (305) days of prior to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;date hereof.
(f) an opinion of counsel for At least five (5) days prior to the date hereof, if the Borrower Parties qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(g) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Loan Parties, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance reasonably satisfactory to the Agent;
(g) copies of all existing Blocked Account Agreements, and Agent shall be satisfied that all such agreements are in full force and effect;
(h) the Agent shall be satisfied that financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a second priority security interest in all Collateral, except as otherwise permitted herein, and Agent shall have received searches reflecting the filing of all such financing statements;
(i) the Third Amendment to the First Lien Credit Agreement shall have been executed;
(j) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(k) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Otter Tail Corp)