Conditions Precedent to Closing. (a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following: (i) All representations and warranties of the Public Parties set forth in Section 5.1 above shall be true and correct as of the Closing Date as if made on the Closing Date; (ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date; (iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof; (iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended; (v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation; (vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and (vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds. (b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following: (i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and (ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and. (iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 3 contracts
Sources: Economic Development Agreement (Rivian Automotive, Inc. / DE), Economic Development Agreement, Economic Development Agreement
Conditions Precedent to Closing. (a) The Company’s Notwithstanding any other provision of this Agreement or any of the other Transaction Documents, the obligation of the Purchaser to consummate the Closing is expressly conditioned upon shall be subject to the satisfaction satisfaction, at or waiver prior to the Closing, of each of the following:following conditions (any of which may be waived in whole or in part by the Purchaser):
(i) All There shall not be in force any order or decree, statute, rule or regulation by any Governmental Authority restraining, enjoining or prohibiting the consummation of the Closing.
(ii) Each of the representations and warranties of the Public Parties set forth Company contained in Section 5.1 above this Agreement and the other Transaction Documents to which the Company is a party shall be true and correct in all material respects as of the Closing (except that any such representation or warranty which speaks, by its terms, as of a specific date or time other than the Closing, shall be true and correct as of the Closing Date as if made on the Closing Date;
(ii) No event of default beyond any applicable notice such date), and cure periods on the part each of the Public Parties has occurred covenants and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability agreements of the Company to actively construct, develop be performed or use the Project, then this closing condition shall be deemed satisfied complied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; andClosing shall have been performed or complied with by the Company in all material respects.
(iii) The Company shall have delivered the certificates and the Public Parties shall have agreed upon other documents (if any) required to be delivered by it pursuant to Section 2(b)(ii) in accordance with the form provisions thereof.
(b) Notwithstanding any other provision of all customary documents, including without limitation this Agreement or any of the Definitive other Transaction Documents, necessary and reasonable for the obligation of the Company to consummate the Closing shall be subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived in whole or in part by the Company):
(i) There shall not be in force any order or decree, statute, rule or regulation by any Governmental Authority restraining, enjoining or prohibiting the consummation of the transactions contemplated by Closing.
(ii) Each of the representations and warranties of the Purchaser contained in this Agreement, including the Rental Agreement and the other Transaction Documents to which the Purchaser is a party shall be true and correct in all documents related material respects as of the Closing Date (except that the representation and warranty of the Purchaser set forth in Section 3(h) hereof shall be true and correct in all respects as of such date), and each of the covenants and agreements of the Purchaser to be performed or complied with by the Purchaser as of or prior to the Project BondsClosing shall have been performed or complied with by the Purchaser in all material respects.
(iii) The Purchaser shall have paid the Purchase Price to the Company, by wire transfer of immediately available funds pursuant to payment instructions furnished by the Company to the Purchaser.
(iv) The Company shall have received the documents required to be received by the Company pursuant to Section 2(b)(ii) in accordance with the provisions thereof.
Appears in 3 contracts
Sources: Purchase Agreement (Horizon Lines, Inc.), Purchase Agreement (Horizon Lines, Inc.), Purchase Agreement (Horizon Lines, Inc.)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction through (w) hereof or waiver of the followingSection 13.2(a)(ii) hereof:
(ia) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties of made hereunder and in the Public Parties set forth in Section 5.1 above other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation , or would exist after giving effect to the Company that all funds allocated by the Public Parties pursuant Loans to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while be made on such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company date or the Public Parties Letters of Credit to perform their obligations hereunder (other than litigation relating be issued or the Credit Support to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; be provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any on such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bondsdate.
(bd) The Public Parties’ obligation to consummate Agent and the Closing is expressly conditioned upon the satisfaction or waiver Lenders shall have received such opinions of counsel (concerning, among other things, entry of the following:order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(iie) The Company Borrower shall have paid all fees and expenses of the Project Bonds as set forth hereinAgent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all other fees and expenses of the JDA insurance coverage as required by Section 3.6(cthe Agreement.
(g) hereof The Agent and the Lenders shall have had an opportunity, if they so choose, to examine the books of account and other records and files of the Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be paid satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on or the date of such certificate and at all times since a date prior to the Closingdate of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; anda certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(iiij) The Company Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Public Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have agreed upon received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all customary documentsmaterial Debt (including, including without limitation limitation, the Definitive DocumentsTerm Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, necessary without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and reasonable for transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the consummation Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Rental Agreement Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents related and instruments shall have been so filed, registered, published or recorded to the Project Bondssatisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 3 contracts
Sources: Loan and Security Agreement (Eddie Bauer Holdings, Inc.), Loan and Security Agreement (Eddie Bauer Holdings, Inc.), Loan and Security Agreement (Eddie Bauer Holdings, Inc.)
Conditions Precedent to Closing. (a) The Company’s obligation obligations of DIGITAL and Sellers under this agreement shall be and are subject to consummate fulfillment, prior to or at the Closing is expressly conditioned upon the satisfaction or waiver Closing, of each of the followingfollowing conditions:
(i) All That AVE's representations and warranties of the Public Parties set forth in Section 5.1 above contained herein shall be true and correct as at the time of the Closing Date Closing, as if such representations and warranties were made on the Closing Dateat such time;
(ii) No event of default beyond any applicable notice That AVE in all material respects shall have performed or complied with all agreements, terms and cure periods on conditions required by this Agreement to be performed or complied with by it prior to or at the part time of the Public Parties has occurred and is continuing hereunder as of the Closing DateClosing;
(iii) The Title Company is irrevocably committed to issue That AVE's directors, by proper and sufficient vote taken either by consent of directors or at a meeting duly and properly called and held, shall have properly approved all of the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company matters described in order for the Title Company to issue the Title Policy in accordance with the terms hereof;Section 7(b)(i) herein; and
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact That AVE's common stock will be listed on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project)National Quotation Bureau, or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project BondsInc.'s Bulletin Board.
(b) The Public Parties’ obligation obligations of AVE under this Agreement shall be and are subject to consummate fulfillment, prior to or at the Closing is expressly conditioned upon the satisfaction or waiver of each of the followingfollowing conditions:
(i) No event That AVE's Shareholders and Board of default beyond any applicable notice Directors, by proper and cure periods on sufficient vote, shall have approved this Agreement and the part transactions contemplated hereby; approved the contemplated reverse split of AVE's outstanding Common Stock; approved the resignation of all of AVE's current directors and the election of up to ___ designees of DIGITAL to serve as directors in place of AVE's current directors; approved a change AVE'S corporate name to a name selected by DIGITAL and will have approved such other changes as are consistent with this Agreement and approved by DIGITAL for submission to AVE stockholders;
(ii) That DIGITAL's and Sellers' representations and warranties contained herein shall be true and correct at the time of Closing as if such representations and warranties were made at such time and that there shall have been no Material Adverse Effect with respect to DIGITAL; and York shall have received a certificate of DIGITAL and Sellers to such an effect signed by a duly authorized officer of DIGITAL and by each of the Company has occurred and is continuing as of the Closing DateSellers; and
(iiiii) The Company That DIGITAL and Sellers shall have paid performed or complied with all fees agreements, terms and expenses conditions required by this Agreement to be performed or complied with by them prior to or at the time of Closing Date and AVE shall have received a Certificate of DIGITAL and Sellers to such effect signed by or duly authorized officer of DIGITAL and by each of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.Sellers;
(iiiiv) The Company and the Public Parties shall That DIGITAL's officers will have agreed upon signed non-compete clauses in the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.attached hereto as Exhibit "J";
Appears in 3 contracts
Sources: Acquisition Agreement (Cyco Net Inc), Acquisition Agreement (Cyco Net Inc), Acquisition Agreement (Cyco Net Inc)
Conditions Precedent to Closing. (a) The Company’s obligation Debentureholder will only be obliged to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the followingsubscribe for Debentures if:
(i) All the Debentureholder, in its sole discretion, acting reasonably and in good faith, shall be satisfied with their due diligence review with respect to the business, assets, financial condition and affairs of the Issuer and the Group;
(ii) prior to the Closing, the Debentureholder has received all of the documents listed in Schedule 2 (Conditions Precedent) in form and substance reasonably satisfactory to it (in its discretion), save for the documents listed in Clause 4.2(a)(ii) (Closing Procedure);
(iii) on each of the date hereof and on the Closing Date, no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Issuer or prohibiting the sale of the Debentures or the issue of Shares issuable thereunder in accordance with the terms of the Debenture Certificate and no proceeding for such purpose being pending or, to the knowledge of the Issuer, threatened by any Governmental Authority or the Stock Exchange;
(iv) on each of the date hereof and on the Closing Date: (A) the representations and warranties of the Public Parties set forth Issuer in Section 5.1 above shall be true this Agreement are true, accurate and correct as of the Closing Date at, and as if made on, such date, (B) the Issuer has performed all of its respective obligations under this Agreement to be performed on or before such date and on the Closing Date;
, and (iiC) No event there has been no material breach of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as obligations of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expendedIssuer under this Agreement;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability Closing Date, no Default is continuing or would result from the issue of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigationDebentures;
(vi) All federal authorizations there has been no Material Adverse Change;
(vii) the Debentureholder shall have received at the Closing Time favourable legal opinions addressed to the Debentureholder dated and delivered on the Closing Date from the Issuer's legal counsel, and from local counsel, in each case in form and substance satisfactory to the Debentureholder (in its discretion), acting reasonably, with respect to the following matters:
(1) with respect to the Issuer (A) the enforceability of the Debenture Documents; (B) the creation and valid issuance of the Debentures; (C) corporate matters related to the Issuer and its Material Subsidiaries; and (D) such matters that are customary in transactions similar to the offering of the Debentures, subject to customary assumptions, qualifications and limitations;
(2) with respect to each Material Subsidiary (A) being a corporation existing under the laws of the jurisdiction in which it was incorporated, amalgamated, continued or formed, as the case may be, and having all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets; (B) in respect of title to and rights in the Properties and Permits applicable to each Material Subsidiary; (C) as to its authorised and issued and outstanding capital; (D) all of its issued and outstanding shares being registered, directly or indirectly, in the name of the Issuer; and (E) such matters that are customary in transactions similar to the offering of the Debentures, subject to customary assumptions, qualifications and limitations.
(viii) the Issuer having paid: (1) the reasonable out-of-pocket due diligence fees and expenses of legal counsel retained by the Lead Subscriber up to a maximum of US$75,000 (excluding disbursements and applicable taxes); and (2) the reasonable out-of-pocket fees and expenses of UK legal counsel retained by the Lead Subscriber up to a maximum of £20,000 (excluding disbursements and applicable taxes);
(ix) in the Debentureholder’s opinion (acting in good faith), since the date of this Agreement there has been no adverse change in the financial markets in the United States which would reasonably be considered material in the context of the issue of the Debentures and the Wetland Permit purchase thereof by the Debentureholder;
(x) the Issuer having obtained all required by §404 regulatory (including Stock Exchange) and corporate approvals, and all requisite third-party consents, to permit the completion of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 daystransactions contemplated hereby; and
(viixi) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related on or prior to the Project BondsClosing, the Debentureholder has received the documents listed in Clause 4.2(a)(ii) (Closing Procedure) to be held in escrow pending Closing.
(b) The Public Parties’ obligation to consummate Debentureholder shall notify the Closing is expressly conditioned Issuer promptly upon the satisfaction receipt by or waiver on behalf of the following:Debentureholder of all of the documents and other evidence listed in Schedule 2 (Conditions Precedent) in form and substance satisfactory to it.
(ic) No event of default beyond The Debentureholder may, in its absolute discretion and upon such terms as it thinks fit, waive compliance with the whole or any applicable notice and cure periods on the part of the Company has occurred and is continuing as of this Clause 4.1 (Conditions Precedent to Closing).
(d) If, on the Closing Date; and
(ii) The Company shall have paid all fees and expenses , any of the Project Bonds conditions precedent provided in Clause 4.1(a) have not been satisfied, nor waived as set forth hereinprovided in Clause 4.1(c), then the Debentureholder shall, at its election, be relieved of all its obligations under Clause 3.2 (Undertaking to Subscribe) to subscribe for the Debentures under this Agreement, without prejudice to its right to seek indemnification for damages suffered by the Debentureholder as a result of, or any other remedy the Debentureholder may have in connection with, and all other fees and expenses default or non-compliance of the JDA as required by Section 3.6(c) hereof to be paid on or Issuer’s obligations hereunder prior to the Closing; andsuch termination.
(iiie) The Company and An election by the Public Parties Debentureholder under Clause 4.1(d) shall not operate as a waiver of any rights the Debentureholder may have agreed upon the form by reason of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related such failure to the Project Bondssatisfy or such non-fulfilment.
Appears in 2 contracts
Sources: Subscription Agreement (Lifezone Metals LTD), Subscription Agreement (Lifezone Metals LTD)
Conditions Precedent to Closing. (a) The Company’s obligation to consummate complete the purchase and sale of the Shares and deliver such stock certificate(s) to a Purchaser at the Closing is expressly conditioned upon shall be subject to the satisfaction following conditions, any one or waiver more of which may be waived in writing by the following:
Company: (i) All receipt by the Company of same-day funds in the full amount of the purchase price for the Shares being purchased hereunder by such Purchaser; (ii) that the representations and warranties of the Public Parties set forth in Section 5.1 above shall be true and correct as of the Closing Date as if made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which Purchaser herein are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing accurate as of the Closing Date; and
(iiiii) The Company shall have paid all fees that such Purchaser has fulfilled undertakings and expenses of the Project Bonds as covenants set forth herein, and all other fees and expenses of the JDA as herein required by Section 3.6(c) hereof to be paid on or fulfilled prior to the Closing; and.
(iiiiv) The such Purchaser shall have executed and delivered to the Company the Questionnaire and the Public Parties Registration Statement Questionnaire attached hereto as part of Appendix I (the “Registration Statement Questionnaire”), pursuant to which such Purchaser shall provide information necessary to confirm such Purchaser’s status as an “accredited investor” as defined in Rule 501 promulgated under the Securities Act; (v) no proceeding challenging this Agreement or the transactions contemplated hereby or thereby or seeking to prohibit, alter, prevent or materially delay the Closing shall have agreed upon been instituted or shall be pending before any court, arbitrator or governmental body, agency or official; (vi) the form sale of Shares to such Purchaser shall not be prohibited by any law or governmental order or regulation; (vii) such Purchaser has received a copy of the Private Placement Memorandum and the Company Disclosure Letter; and (viii) the Acquisition and all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Acquisition Agreement and all documents related shall have been consummated pursuant to the Project Bondsterms thereof.
(b) Each Purchaser’s obligation to accept delivery of such stock certificate(s) and to pay for the Shares evidenced thereby shall be subject to the conditions: (i) that the representations and warranties made by the Company herein are accurate as of the Closing Date; (ii) that the Company has fulfilled all undertakings and covenants set forth herein required to be fulfilled prior to the Closing; (iii) that the Acquisition shall have been completed; (iv) that the Common Stock shall be quoted by at least three market-makers on the OTC Bulletin Board within five (5) days of the Closing Date; (v) the absence of any Material Adverse Change (as defined in Section 4.22) affecting the Company since December 31, 2007; (vi) no proceeding challenging this Agreement or the transactions contemplated hereby or thereby or seeking to prohibit, alter, prevent or materially delay the Closing shall have been instituted or shall be pending before any court, arbitrator or governmental body, agency or official; (vii) the sale of Shares to such Purchaser shall not be prohibited by any law or governmental order or regulation; (viii) that the Placement Agent shall have received the opinion of Sonfield & Sonfield, the Company’s outside counsel, dated as of the Closing Date, substantially covering the matters set forth in Exhibit 2 attached hereto; (ix) that the Company shall have delivered to the Placement Agent a certificate evidencing the formation and good standing of the Company and of Flotation in their respective jurisdictions of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within ten (10) days of the Closing Date; (x) that the Company shall have delivered to the Placement Agent a certificate evidencing the Company’s and Flotation’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company and Flotation conducts business, as of a date within ten (10) days of the Closing Date; (xi) that the Company shall have delivered to the Placement Agent a certified copy of the Articles of Incorporation as certified by the Secretary of State of the State of Delaware within ten (10) days of the Closing Date; (xii) that the Company shall have delivered to the Placement Agent a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (x) the resolutions consistent with Section 4.4 as adopted by the Company’s Board of Directors in a form reasonably acceptable to the Placement Agent, (y) the Certificate of Incorporation, as amended and (z) the Bylaws, each as in effect at the Closing. The Company shall provide copies of any of the documents referred to in this Section 3.3 to any Purchaser upon such Purchaser’s request.
Appears in 2 contracts
Sources: Purchase Agreement (Deep Down, Inc.), Purchase Agreement (Deep Down, Inc.)
Conditions Precedent to Closing. (5.2.1 Conditions in favor of V-Sciences The Closing shall be subject to the prior fulfillment of each of the following conditions precedent in favor of V-Sciences unless otherwise waived:
a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) All representations and warranties of the Public Parties set forth Company contained in Section 5.1 above 7.1 shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date;
(ii) No event of default beyond any applicable notice except that representations and cure periods on the part of the Public Parties has occurred warranties qualified by materiality or a Material Adverse Effect shall be true and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available correct in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Projectrespects), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid performed and complied with all fees covenants, agreements, obligations and expenses conditions contained in this Subscription Agreement that are required to be performed or complied with by the Company on or before such Closing.
c) All authorizations, approvals or permits, if any, of any governmental authority or regulatory body that are required in connection with the lawful issuance and sale of the Project Bonds Shares pursuant to this Subscription Agreement shall be obtained and effective as set forth hereinof such Closing.
d) The Company, V-Sciences, any other investor participating in the Series E Round and all the other fees and expenses shareholders of the JDA as required by Section 3.6(c) hereof to be paid on or Company representing 85% of all outstanding Shares prior to the Closing; and.
(iii) The Company and Closing of the Public Parties Series E Financing Round shall have agreed upon executed and delivered the Shareholders’ Agreement (or a joinder agreement thereto), in substantially the form of all customary documentsAnnex 0 hereto.
e) The Company, including without limitation V-Sciences, any other Investor requesting so and the Definitive Documentsother shareholders of the Company named as parties thereto shall have executed and delivered the Registration Rights Agreement (or a joinder agreement thereto), necessary in substantially the form of Annex 5.2.1(e) hereto.
f) V-Sciences and reasonable any other Investor requesting so shall have received from ▇▇▇▇▇▇▇ ▇▇, counsel for the consummation Company, an opinion, dated as of the date of such Closing, in substantially the form Annex 5.2.1(f) attached to this Subscription Agreement.
g) Legal counsel shall have delivered to V-Sciences and any other Investor requesting so a certificate, dated as of the date of such Closing, certifying (i) the resolutions of the Board of Directors of the Company approving the Subscription Agreement and the transactions contemplated by this under such Agreement, including and (ii) resolutions of the Rental Agreement shareholders of the Company approving the issuance of Series E Preferred Shares and the Revised Articles of Association in Annex 3.3
h) All corporate and other proceedings in connection with the transactions contemplated at such Closing and all documents related incident thereto shall be reasonably satisfactory in form and substance to V-Sciences and the Project Bonds.Investors shall have received all such counterpart original and certified or other copies of such documents as reasonably requested. Subscription Agreement regarding AC Immune SA as of 16 October 2015 10
Appears in 2 contracts
Sources: Subscription Agreement, Subscription Agreement (AC Immune SA)
Conditions Precedent to Closing. (a) The Company’s obligation respective obligations of each of the Company and the Purchasers to consummate the Closing is expressly conditioned upon shall be subject to the satisfaction or waiver waiver, if permissible under applicable law, on or prior to the Closing Date of the followingfollowing conditions:
(i) All representations no Governmental Entity shall have enacted, issued, promulgated, enforced or entered any judgment, order, law, rule or regulation which is then in effect and warranties has the effect of making the consummation of the Public Parties set forth in Section 5.1 above transactions contemplated hereby illegal or otherwise restraining or prohibiting consummation of the transactions contemplated hereby; and
(ii) the Transaction shall have closed.
(b) The obligations of each Purchaser to consummate the Closing shall be true subject to the satisfaction or waiver by such Purchaser, in its sole discretion and correct as of if permissible under applicable law, on or prior to the Closing Date as if made on of the following conditions:
(i) the Closing shall have occurred by the Outside Date;
(ii) No event of default beyond any applicable notice the representations and cure periods on the part warranties of the Public Parties has occurred Company contained in this Agreement shall be true and is continuing hereunder correct in all material respects at and as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available shall have performed, satisfied and complied in all material respects as of the applicable Closing Datewith all covenants, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, agreements and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit conditions required by §404 of the Clean Water Actthis Agreement to be performed, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order satisfied or complied with by it at or prior to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(iiiv) The the Company shall have paid all fees and expenses delivered a certificate of the Project Bonds as set forth hereinSecretary or an Assistant Secretary of the Company in form reasonably acceptable to the Purchasers with respect to the Company’s good standing in its jurisdiction of organization, its organizational documents, and all other fees and expenses its corporate authorization of the JDA as required transactions contemplated hereby.
(c) The obligations of the Company to consummate the Closing shall be subject to the satisfaction or waiver by Section 3.6(c) hereof to be paid the Company, in its sole discretion and if permissible under applicable law, on or prior to the Closing; and.Closing Date of the following conditions:
(iiii) The Company all representations and warranties of the Public Parties Purchasers contained in this Agreement shall be true and correct as to each Purchaser, severally and not jointly, except as would not have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of a material adverse effect on such Purchaser’s ability to consummate the transactions contemplated hereby; and
(ii) each Purchaser shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this AgreementAgreement to be performed, including the Rental Agreement and all documents related satisfied or complied with by it at or prior to the Project BondsClosing Date.
Appears in 2 contracts
Sources: Investment Agreement (Innventure, Inc.), Investment Agreement (Learn CW Investment Corp)
Conditions Precedent to Closing. Subject to Section 3.02, the obligation of the Lenders hereunder shall be subject to the conditions precedent that the Facility Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Facility Agent:
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver each of the following:Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(ib) All representations true and warranties complete copies of the Public Parties set forth in Section 5.1 above shall be true and correct as Constituent Documents of the Closing Date Borrower, the Parent and the Portfolio Manager as if made in effect on the Closing Date;
(iic) No event of default beyond any applicable notice true and cure periods on the part complete copies certified by a Responsible Officer of the Public Parties has occurred Borrower of all Governmental Authorizations, Private Authorizations and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder Governmental Filings (other than litigation relating the UCC financing statements to development or permitting of the Projectbe filed pursuant to clause (f) below), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (includingif any, without limitation, permitting), as described herein; provided that required in connection with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement;
(d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, including (ii) as to its resolutions or other action of the Rental board of directors of the Parent approving this Agreement and the other Facility Documents to which the Borrower is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all documents related material respects as of the Closing Date (except to the Project Bonds.extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(be) The Public Parties’ obligation a certificate of a Responsible Officer of the Portfolio Manager certifying (i) as to consummate its Constituent Documents, (ii) as to its resolutions or other action of its board of directors approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) to the best of its knowledge, no Default or Event of Default has occurred and is expressly conditioned upon continuing, and (v) as to the satisfaction incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or waiver desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor);
(h) legal opinions (addressed to each of the followingSecured Parties) of (i) Milbank LLP, U.S. counsel to the Borrower and the Portfolio Manager, and (ii) ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request;
(i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect;
(j) evidence satisfactory to the Facility Agent that any agreements of the Borrower, other than the Facility Documents, have been terminated and all obligations of the Borrower thereunder have been released;
(k) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full;
(l) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(m) delivery of the Collateral (including any promissory note, executed assignment agreements and copies of any other Related Documents in Microsoft Word format or portable document format (.pdf) available to the Borrower for each initial Collateral Obligation) in accordance with Section 12.20 shall have been effected;
(n) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date:
(i) No event the Borrower is the owner of default beyond such Collateral free and clear of any applicable notice and cure periods liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the part Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens;
(ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;
(iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement;
(iv) the Borrower has full right to grant a security interest in and assign and pledge all of its right, title and interest in such Collateral to the Collateral Agent; and
(v) upon grant by the Borrower, Delivery of the Company Collateral and execution of the Account Control Agreement, the Collateral Agent has occurred a first priority (subject to Permitted Liens) perfected security interest in the Collateral;
(o) [reserved];
(p) such other opinions, instruments, certificates and is continuing documents from the Borrower as the Agents or any Lender shall have reasonably requested; and
(q) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of the Collateral Obligations owned by the Borrower on the Closing Date:
(i) each of the Collateral Quality Tests and the Concentration Limitations is satisfied; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth hereinwith respect to any Collateral Obligation with a Credit Estimate, and all other fees and expenses of the JDA as required such Credit Estimate has been assigned by Section 3.6(c) hereof to be paid on Moody’s, S&P or DBRS within one year prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable Closing Date or a request for the consummation an updated Credit Estimate has been submitted by or on behalf of the transactions contemplated by this Agreement, including the Rental Agreement Borrower and all documents related to the Project Bondsis pending receipt.
Appears in 2 contracts
Sources: Credit and Security Agreement (BlackRock Private Credit Fund), Credit and Security Agreement (BlackRock Private Credit Fund)
Conditions Precedent to Closing. SECTION 7.1. Conditions to the Company's Obligations. The obligations of the Company with respect to a Purchaser hereunder required to be performed on the Closing Date shall be subject to the satisfaction or waiver, at or prior to the Closing, of the following conditions:
(a) The Company’s obligation to consummate representations and warranties of such Purchaser contained in this Agreement shall have been true and correct when made and, in addition, shall be repeated and true and correct in all material respects on and as of the Closing is expressly conditioned upon Date with the same force and effect as though made on and as of the Closing Date.
(b) Such Purchaser shall have performed in all material respects all obligations and agreements, and complied in all material respects with all covenants contained in this Agreement to be performed and complied with by such Purchaser at or prior to the Closing Date.
(c) Any applicable waiting period under the HSR Act with respect to the purchase by such Purchaser shall have expired or been terminated.
(d) The Company shall have obtained all necessary consents, waivers, authorizations and approvals of all Governmental Authorities and of all other Persons required in connection with the execution, delivery and performance of the Equity Documents or the consummation of the Issuance.
(e) Such Purchaser shall have entered into the Registration Rights Agreement.
SECTION 7.2. Conditions to Each Purchaser's Obligations. The obligations of a Purchaser hereunder required to be performed on the Closing Date shall be subject to the satisfaction or waiver waiver, at or prior to the Closing, of the followingfollowing conditions:
(ia) All The representations and warranties of the Public Parties set forth Company contained in Section 5.1 above this Agreement (i) shall be have been true and correct when made and (ii) shall be (A) in the case of representations and warranties that are qualified as to materiality or Material Adverse Effect, true and correct and (B) in all other cases, true and correct in all material respects, in the case of clauses (A) and (B), as of the Closing Date with the same force and effect as if though made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;.
(iiib) The Title Company is irrevocably committed shall have performed in all material respects all of its obligations, agreements and covenants contained in this Agreement to issue be performed and complied with at or prior to the Title Policy and Closing Date.
(c) The Company shall have entered into the Public Parties Registration Rights Agreement.
(d) The Company shall have filed the Certificate of Designation with the Secretary of State of the State of Delaware.
(e) Any applicable waiting period under the HSR Act with respect to the purchase by such Purchaser shall have expired or been terminated.
(f) The Company shall have delivered any documents reasonably requested to such Purchaser a certificate executed by it or on its behalf by a duly authorized representative, dated the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;effect that each of the conditions specified in paragraph (a) through (e) of this Section 7.2 has been satisfied.
(vg) There is no litigation pending No provision of any Applicable Law, injunction, order or threatened with respect to the Project Site decree of any Governmental Entity shall be in effect which (A) has resulted in a final order to the effect that of making the Project Site is subject to local zoning codes Transactions illegal or building ordinances while such Project Site is owned by shall otherwise restrain or prohibit the State, leased to consummation of the JDA, and rented Transactions.
(h) Such Purchaser shall have received an opinion of counsel to the Company, dated the Closing Date, and addressed to such Purchaser, in form and substance reasonably acceptable to the Purchaser.
(Bi) would Such Purchaser shall have received certificates representing the Securities purchased by such Purchaser concurrently with the Company's receipt of the Purchase Price for such Securities.
(j) The Purchaser shall have executed and caused its rights agent to execute the Rights Agreement Amendment.
(k) The Company shall have delivered to the HMTF Purchasers a Management Rights Agreement executed by the Company and addressed to the HMTF Funds.
(l) There shall not have occurred (i) any event, circumstance, condition, fact, effect or other matter which has had or could reasonably be expected to have a material impact adverse effect (x) on the business, assets, financial condition, prospects, or results of operations of the Company and the Subsidiaries taken as a whole or (y) on the ability of the Company or and the Public Parties Subsidiaries to perform their obligations hereunder (other than litigation relating on a timely basis any material obligation under this Agreement or to development consummate the Issuance contemplated hereby; or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) any material disruption of or material adverse change in financial, banking or capital market conditions that would reasonably be expected to materially impair the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the Company's ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown obtain financing on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bondsterms.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 2 contracts
Sources: Preferred Stock and Warrant Purchase Agreement (Rhythms Net Connections Inc), Preferred Stock and Warrant Purchase Agreement (Hicks Thomas O)
Conditions Precedent to Closing. (a) 7.1 The Company’s obligation obligations of Seller to consummate the Closing is expressly conditioned upon the satisfaction or waiver transactions contemplated by this Agreement are subject to each of the followingfollowing conditions:
(i) All a. The representations and warranties of the Public Parties set forth made by Buyer in Section 5.1 above this Agreement shall be true in all material respects when made and correct on and as of the Closing Date as if though such representations and warranties were made on and as of the Closing. Seller shall have received from Buyer at Closing a satisfactory certificate to such effect signed by an authorized officer of Buyer.
b. Buyer shall have performed and complied in all material respects with all provisions of this Agreement required to be performed or complied with by Buyer before or at Closing. Seller shall have received from Buyer at the Closing Date;a satisfactory certificate to such effect, signed by an authorized officer of Buyer.
(ii) No event of default beyond any applicable notice c. Buyer shall have executed and cure periods on delivered to Seller at the part Closing each of the Public Parties has occurred Buyer Documents and such additional documents as may be reasonably requested by Seller or the Title Company in order to consummate the transactions contemplated by this Agreement.
d. Buyer shall have paid or made provisions acceptable to Seller for the payment of all fees, costs and expenses for obtaining all environmental due diligence, surveys, title examinations, inventory audits, and other inspections performed in connection with the transactions contemplated pursuant to this Agreement.
e. The SPA shall have not been terminated and LGWS is continuing hereunder not in default under the terms of the SPA.
7.2 The obligations of Buyer to consummate the transactions contemplated by this Agreement are subject to each of the following conditions:
a. The representations and warranties made by Seller in this Agreement shall be true in all material respects when made and on and as of the date of Closing as though such representations and warranties were made on and as of Closing. Buyer shall have received from Seller at Closing a satisfactory certificate to such effect signed by an authorized officer of Seller.
b. Seller shall have performed and complied in all material respects with all provisions of this Agreement required to be performed or complied with by Seller before or at Closing. Buyer shall have received from Seller at Closing a satisfactory certificate to such effect signed by an authorized officer of Seller.
c. Seller shall have executed and delivered to Buyer at the Closing each of the Seller Documents and such additional documents as may be reasonably requested by Buyer or the Title Company in order to consummate the transactions contemplated by this Agreement.
d. The SPA shall have not been terminated and Shareholders are not in default under the terms of the SPA.
7.3 The obligations of each of Seller and Buyer to consummate the transactions contemplated by this Agreement are subject to each of the following condition: as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered , there shall not be any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all claim or judgment of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Dateany nature or type threatened, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to made by or before any governmental authority that questions or challenges the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation lawfulness of the transactions contemplated by this AgreementAgreement under any law or regulation or seeks to delay, including the Rental Agreement and all documents related to the Project Bondsrestrain or prevent such transactions.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Lehigh Gas Partners LP), Purchase and Sale Agreement
Conditions Precedent to Closing. (a) The Company’s obligation obligations of Purchaser to consummate effect the transactions contemplated by this Agreement shall be subject to the satisfaction, at or prior to the Closing is expressly conditioned upon Date, and the continued satisfaction or waiver validity of such conditions on the Closing Date, of all of the followingfollowing conditions, any one or more of which may be waived by Purchaser:
(i) All Each of the representations and warranties of the Public Parties set forth in Section 5.1 above Seller contained herein shall be true and correct on and as of the Closing Date with the same effect as if though the same had been made on and as of such date;
ii) Seller shall have performed and complied in all material respects with all agreements and covenants required by this Agreement to be performed and complied with by Seller prior to or on the Closing Date;; and
(iiiii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of On the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in , there shall exist no injunction or other order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted issued by any Governmental Authority or court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for prohibits the consummation of the transactions contemplated by under this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation obligations of Seller to consummate effect the transactions contemplated by this Agreement shall be subject to the satisfaction, at or prior to the Closing is expressly conditioned upon Date, and the continued satisfaction or waiver validity of such conditions on the Closing Date, of all of the followingfollowing conditions, any one or more of which may be waived by Seller:
(i) No event of default beyond any applicable notice and cure periods on the part Each of the Company has occurred representations and is continuing warranties of Purchase contained herein shall be true and correct on and as of the Closing Date with the same effect as though the same had been made on and as of such date;
ii) Purchaser shall have performed and complied in all material respects with all agreements and covenants required by this Agreement to be performed and complied with by Purchaser prior to or on the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and On the Public Parties Closing Date, there shall have agreed upon the form exist no injunction or other order issued by any Governmental Authority or court of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for competent jurisdiction which prohibits the consummation of the transactions contemplated by under this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Orbis Corp), Stock Purchase Agreement (Orbis Corp)
Conditions Precedent to Closing. SECTION 7.1. Conditions to the Company's Obligations. The obligations of the Company hereunder required to be performed on the Closing Date shall be subject, at the election of the Company, to the satisfaction or waiver, at or prior to the Closing, of the following conditions:
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) All representations and warranties of the Public Parties set forth each Holder contained in Section 5.1 above this Agreement shall be have been true and correct when made and, in addition, shall be repeated and true and correct in all material respects on and as of the Closing Date with the same force and effect as if though made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation Each Holder shall have performed in all material respects all obligations and agreements, and complied in all material respects with all covenants contained in this Agreement to consummate the Closing is expressly conditioned upon the satisfaction be performed and complied with by such Holder at or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of prior to the Closing Date; and.
(iic) Any applicable waiting period under the HSR Act shall have expired or been terminated.
(d) The Company shall have paid all fees received, on terms reasonably satisfactory to the Company, Apollo Management and expenses Blackstone, any consent or waiver necessary under the Credit Agreement to permit the performance of this Agreement and consummation of the Project Bonds as set forth herein, and all other fees and expenses Transactions.
(e) The stockholders of the JDA Company shall have approved the Issuance as required by Section 3.6(c) hereof to be paid on or prior to the Closing; andApplicable Law.
(iiif) The Company Holders shall have entered into each of the Supplementary Registration Rights Agreement and the Public Parties Supplementary Shareholders Agreement.
(g) The Holders shall have agreed upon delivered certificates representing their Shares to the form Company.
(h) No provision of all customary documentsany Applicable Law, including without limitation injunction, order or decree of any Governmental Entity shall be in effect which has the Definitive Documents, necessary and reasonable for effect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the transactions contemplated Transactions.
(i) The concurrent consummation of the Exchange by this the Apollo/Blackstone Shareholders (as defined in the Shareholders Agreement, including the Rental Agreement and all documents related to the Project Bonds).
Appears in 2 contracts
Sources: Exchange Agreement (Allied Waste Industries Inc), Exchange Agreement (Allied Waste Industries Inc)
Conditions Precedent to Closing. Neither Agent nor any Lender shall be obligated to make the initial Loans, or to take, fulfill, or perform any other action under this Agreement, until the following conditions have been satisfied to Agent’s complete satisfaction or waived in writing by Agent and the Lenders:
(a) The CompanyAgent shall have received each of the documents, agreements, instruments, reports, certificates and statements set forth on the Schedule of Documents, each duly executed by the appropriate parties and in form and substance satisfactory to Agent;
(b) payment by Borrower of Agent’s obligation Fees and all other fees, costs, and expenses of closing (including reasonable fees of counsel to Agent invoiced as of the Closing Date);
(c) no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before any court, Governmental Authority or legislative body to enjoin, restrain or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby or thereby and that, in Agent’s sole judgment, would make it inadvisable to consummate the Closing is expressly conditioned upon the satisfaction transactions contemplated by this Agreement or waiver any other Loan Document;
(d) Agent and each Lender shall have completed their business and legal due diligence, including a Collateral audit and field examination, with results satisfactory to Agent;
(e) all of the following:
(i) All representations and warranties of Borrower under this Agreement and the Public Parties set forth in Section 5.1 above other Loan Documents shall be true and correct in all material respects at such date, except to the extent any such representations and warranties relate to an earlier date in which case such representations and warranties shall remain true and correct in all material respects as of such earlier date (provided that the foregoing materiality qualifications shall not apply to any representations and warranties that already are qualified or modified by materiality in the text thereof), and Agent shall have received a certificate, dated as of the Closing Date as if made on Date, to that effect signed by an Authorized Signatory;
(f) Agent shall determine that no Material Adverse Effect shall have occurred since the most recent audited Financial Statements delivered to Agent prior to the Closing Date;
(g) Agent shall have received opinions of counsel addressed to Agent and the Lenders of (i) Winston & ▇▇▇▇▇▇ LLP, special counsel to Borrower and (ii) No event of default beyond any applicable notice ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special Maryland counsel to Borrower, each in form and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Datesubstance satisfactory to Agent;
(iiih) The Title Company is irrevocably committed to issue the Title Policy Agent and the Public Parties Requisite Lenders shall have delivered any documents reasonably requested by the Title Company in order for the Title Company received and approved Borrower’s Credit Policy, which shall be consistent with those previously represented to issue the Title Policy in accordance with the terms hereofAgent;
(ivi) The Public Parties Agent shall have provided written confirmation received evidence satisfactory to the Company Agent either that all funds allocated by the Public Parties pursuant to Section 1.3(dany Person having a Lien (except for Permitted Liens) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to assets of Borrower shall have released such Lien or that such Lien shall be automatically terminated upon the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability funding of the Company or the Public Parties Loans to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown made on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(iij) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees documents and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of legal matters in connection with the transactions contemplated by this AgreementAgreement shall have been delivered, including executed, or recorded and shall be in form and substance satisfactory to Agent. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the Rental terms of this Section 2.1 shall control, and Borrower shall not have any rights under this Agreement and all documents related or any other Loan Document until each of the conditions of this Section 2.1 has been complied with to the Project BondsAgent’s satisfaction or specifically waived in a writing by Agent.
Appears in 2 contracts
Sources: Loan and Security Agreement (Hercules Technology Growth Capital Inc), Loan and Security Agreement (Hercules Technology Growth Capital Inc)
Conditions Precedent to Closing. 5.1 Conditions to the Company's Obligations. The obligations of the Company hereunder required to be performed on the Closing Date shall be subject, at its election, to the satisfaction or waiver, at or prior to the Closing, of the following conditions:
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) All representations and warranties of the Public Parties set forth Purchaser contained in Section 5.1 above this Agreement shall have been true and correct when made and shall be true and correct in all material respects on and as of the Closing Date with the same force and effect as if though made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;.
(iiib) The Title Company is irrevocably committed Purchaser shall have performed all obligations and agreements, and complied with all covenants, contained in this Agreement, to issue the Title Policy be performed and the Public Parties have delivered any documents reasonably requested complied with by the Title Purchaser at or prior to the Closing.
(c) All governmental and regulatory approvals and clearances and all third-party Consents necessary for the consummation by the Purchaser of the transactions contemplated by the Transaction Documents shall have been obtained and shall be in full force and effect.
(d) The Company shall have received payment of the Purchase Price as well as payment of all costs incurred by the Company in order for the Title Company to issue the Title Policy in accordance connection with the terms hereof;sale of the Subject Interests.15
5.2 Conditions to Purchaser's Obligations. The obligations of the Purchaser hereunder required to be performed at the Closing shall be subject, at its election, to the satisfaction or waiver, at or prior to the Closing, of the following conditions:
(iva) The Public Parties have provided written confirmation to representations and warranties of the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available contained in this Agreement shall have been true and correct when made and shall be true and correct in all material respects on and as of the applicable Closing Date with the same force and effect as though made on and as of the Closing Date.
(b) The Company shall have performed all obligations and agreements, and complied with all covenants, contained in this Agreement, to be performed and complied with by it at or prior to the Closing Date.
(c) There shall not exist any Lien on any assets owned by any AH Entity other than those contemplated under the Mortgage Loan Documents, the Investor Loan Documents, the Subordinated Loan Documents or any documents executed by Purchaser.
(d) To the extent not previously expended;already in the possession of the Purchaser or one of its Affiliates, the Company shall have delivered to the Purchaser a copy of each AH Entity's Organizational Documents, as amended through the Closing Date.
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vie) All federal authorizations governmental and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are regulatory approvals and clearances and all third-party Consents necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement Transaction Documents shall have been obtained and all documents related to the Project Bondsshall be in full force and effect.
(bf) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver Purchaser shall have received delivery of the following:
(i) No event of default beyond any applicable notice Stock Certificate and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; andan executed Stock Power.
(iiig) The Company and the Public Parties Purchaser shall have agreed upon the form of all customary documentsreceived such other certificates, including without limitation the Definitive Documents, necessary instruments and reasonable for the consummation documents in furtherance of the transactions contemplated by this AgreementAgreement as it may reasonably request.
(h) Each officer and director, including the Rental Agreement and all documents related to the Project Bondsif any, of each AH Entity shall have resigned.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Brookdale Senior Living Inc.), Stock Purchase Agreement (Brookdale Senior Living Inc.)
Conditions Precedent to Closing. (a) The Company’s obligation All obligations of Acquired Company and Purchaser under this Agreement are subject to consummate the Closing is expressly conditioned upon fulfillment, on or prior to the satisfaction or waiver closing date, of each of the followingfollowing conditions:
(i) All 8.1. That the representations of Purchaser and warranties of the Public Parties set forth in Section 5.1 above Acquired Company shall be true at and correct as of the Closing Date closing date as if though such representations were made at and as of such time;
8.2. That Purchaser shall have received a written opinion, dated on the Closing Date;
(ii) No event closing date, of default beyond counsel representing the Acquired Company, to the effect that the Acquired Company has been duly incorporated and is in good standing under the laws of the State of its organization with a capitalization as represented in this Agreement; that the Acquired Company is duly licensed or qualified to do business in any applicable notice and cure periods all States or jurisdictions in which it does business or where in the opinion of Counsel such qualification is required; that such counsel knows of no litigation, investigation, or governmental proceeding pending or threatened against the Acquired Company which might result in any material adverse change in the business, properties, or financial condition of the Acquired Company or in any liability on the part of the Public Parties has occurred Acquired Company; and is continuing hereunder as that the assignment and delivery of the Closing DateShares of the Acquired Company pursuant to this Agreement will vest in Purchaser all right, title and interest in and to such Shares, free and clear of all liens, encumbrances and equities;
(iii) The Title Company is irrevocably committed to issue 8.3. That Purchaser shall have received a certificate dated on the Title Policy closing date and the Public Parties have delivered any documents reasonably requested signed by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all President of the Public Parties’ respective obligations hereunder remain available in all respects as Acquired Company, that since the date of this Agreement the Acquired Company has not done or permitted to be done any of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending acts or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated things prohibited by this Agreement;
8.4. That no claim or liability not fully covered by insurance shall have been asserted against the Purchaser or the Acquired Company nor has either party suffered any loss on account of fire, including the Rental Agreement and all documents related flood, accident or other calamity of such a character as to the Project Bondsmaterially adversely affect their financial condition, regardless of whether or not such loss shall have been insured.
(b) The Public Parties’ obligation to consummate 8.5. That all covenants and indemnification's made herein by Purchaser and by the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Acquired Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof which are to be paid on performed at or prior to the Closing; and.
(iii) The Company and the Public Parties closing shall have agreed upon been duly performed;
8.6. That at the form time of all customary documentsclosing the Common Stock of Purchaser shall not be the subject of any investigation or inquiry by the Securities and Exchange Commission, including without limitation the Definitive DocumentsNational Association of Securities Dealers, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bondsany other State or Federal regulatory body.
Appears in 2 contracts
Sources: Purchase and Sale of Stock Agreement (Atlantic International Entertainment LTD), Purchase and Sale Agreement (Atlantic International Entertainment LTD)
Conditions Precedent to Closing. The effectiveness of this Agreement is subject to and conditioned on the satisfaction of each of the following conditions precedent (or waiver by the Party entitled to the benefit of such condition precedent) (the time of such satisfaction or waiver of all of the following conditions is referred to herein as the “Closing”), and thereafter this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. ▇▇▇▇▇▇ agrees that the failure to satisfy any of the conditions set forth in this Agreement shall in no way affect or impair the obligations of any Party or be construed as a waiver by any Party of any of Broadridge’s rights under any of the MSA Documents or hereunder.
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver Broadridge shall have received each of the following:
(i) All representations this Agreement, duly authorized, executed and warranties of the Public Parties set forth in Section 5.1 above shall be true delivered by PWI, PFSC and correct as of the Closing Date as if made on the Closing DatePFSI;
(ii) No event of default beyond any applicable notice and cure periods on written confirmation from ▇▇▇▇▇▇, in a form reasonably acceptable to Broadridge, that the part of the Public Parties Acquisition Transaction has occurred and is continuing hereunder as of the Closing Dateclosed;
(iii) The Title Company is irrevocably committed written confirmation from ▇▇▇▇▇▇, in a form reasonably acceptable to issue Broadridge, that ▇▇▇▇▇▇ consents to Broadridge’s entry into the Title Policy and New Services Agreement with Ridge concerning the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereofTransferred Accounts;
(iv) The Public Parties have provided written confirmation to the Company from ▇▇▇▇▇▇ that Newco has received all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expendedexpected equity contributions from Apex Clearing Solutions LLC (or an affiliate thereof);
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned New Services Agreement, fully executed, authorized and delivered by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described hereinRidge; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;and
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Actsuch other agreements, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary instruments and reasonable for the consummation of certificates as Broadridge may reasonably request related to the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project BondsAcquisition Transaction.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver ▇▇▇▇▇▇ shall have received each of the following:following or the following shall have occurred (as applicable):
(i) No event of default beyond any applicable notice this Agreement, duly authorized, executed and cure periods on delivered by Broadridge;
(ii) written confirmation from Broadridge that it consents to the part of the Company has occurred and is continuing as of the Closing DateAcquisition Transaction; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project BondsAcquisition Transaction has closed.
Appears in 2 contracts
Sources: Termination and Mutual Release Agreement (Broadridge Financial Solutions, Inc.), Termination and Mutual Release Agreement (Penson Worldwide Inc)
Conditions Precedent to Closing. (a) A. Conditions to the Obligations of Each of the Parties. The Company’s obligation of each of the parties hereto to consummate the Closing transactions provided for herein is expressly conditioned upon subject to the satisfaction fulfillment on or waiver prior to the Effective Time of each of the followingfollowing conditions:
(i) All representations and warranties 1. The shareholders of Franklin shall have duly approved the Public Parties set forth in Section 5.1 above shall be true and correct as of the Closing Date as if made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy Merger and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy plan of merger contained within this Agreement in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects and as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake law and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan Franklin's Charter and Bylaws.
2. All necessary governmental and regulatory orders, consents, clearances and approvals and requirements shall have been obtained, the Wetland Mitigation credits have been purchased, secured and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable satisfied for the consummation of such transactions, including without limitation, those of the Federal Reserve System, the Ohio Division of Financial Institutions, the OCC and the Federal Deposit Insurance Corporation to the extent required and, in the case of Fifth Third's obligation, none of such orders, consents, clearances and approvals and requirements shall be subject to a Burdensome Condition.
3. Any waiting period mandated by law in respect of the final requisite approval by any applicable Regulatory Agency of the transaction contemplated herein shall have expired.
4. No order or injunction of any federal or state agency or court shall be in effect preventing, prohibiting or enjoining the transactions contemplated by this Agreement.
5. Fifth Third shall have registered its shares of Fifth Third Common Stock to be issued to the Franklin shareholders hereunder with the SEC pursuant to the Securities Act, including and with all applicable state securities authorities. The registration statement with respect thereto shall have been declared effective by the Rental Agreement SEC and all documents related applicable state securities authorities and no stop order shall have been issued and be continuing. The shares of Fifth Third Common Stock to be issued to the Project BondsFranklin shareholders hereunder shall have been authorized for trading on the Nasdaq National Market upon official notice of issuance.
(b) B. Additional Conditions to the Obligations of Fifth Third and Fifth Third Financial. The Public Parties’ obligation of Fifth Third and Fifth Third Financial to consummate the Closing transactions provided for herein is expressly conditioned upon subject to the satisfaction fulfillment at or waiver prior to the Effective Time of each of the followingfollowing additional conditions unless waived by Fifth Third in a writing delivered to Franklin which specifically refers to the condition or conditions being waived:
(i) No event 1. The representations and warranties of default beyond any applicable notice Franklin contained herein shall be true and cure periods on the part correct both as of the Company has occurred date of this Agreement and is continuing (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date; and.
(ii) The Company 2. Franklin shall have paid performed all fees and expenses of the Project Bonds as obligations required of it under the terms of this Agreement in all material respects.
3. Fifth Third shall have received a certificate from Franklin, executed by its chief executive officer and chief financial officer, dated the Closing Date, certifying to each of such officers' best knowledge and belief that the conditions set forth hereinin Section VI.B.1. and VI.B.2. have been satisfied.
4. No investigation or action by any state or federal agency shall have been threatened in writing or instituted seeking to enjoin or prohibit or unwind the transactions contemplated hereby and no governmental action or proceeding shall have been threatened or instituted before any court or governmental body or authority, seeking to enjoin or prohibit or unwind, the transactions contemplated hereby or seeking to impose material sanctions or penalties as a result thereof (other than investigations, actions and proceedings which have been withdrawn prior to the Closing without a Material Adverse Effect on Fifth Third or Franklin, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on than regularly scheduled regulatory examinations).
5. At or prior to the Closing; andEffective Time, Fifth Third shall have entered into written employment, severance and/or non-competition agreements with each of (a) ▇▇▇▇▇▇ ▇▇▇▇▇, (b) ▇▇▇▇▇ ▇▇▇▇▇, (c) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, (d) ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., and (e) ▇▇▇▇ ▇▇▇▇▇▇▇▇ on terms satisfactory to Fifth Third and each of the foregoing individuals.
(iiia) The Company and the Public Parties shall have agreed upon the form In consideration of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated Merger, each of the Directors of Franklin and Bank Subsidiary (except those persons who enter into an agreement as required by VI.B.5 above) shall receive a cash payment from Fifth Third in the amount of $5,000, and each Director of Franklin (except those persons who enter into an agreement as required by VI.B.5 above) shall have executed and delivered to Fifth Third an agreement by which the Directors shall agree for a period of three years after the Effective Time to refrain from directly or indirectly, whether for his or her own account or for the account of any other person, firm, corporation, or other business organization, (i) in the states of Kentucky or Tennessee, engage in providing Banking Services (as defined below) as an employee, officer, director, or consultant on behalf of any other business organization who is a competitor of Fifth Third, (ii) provide Banking Services to any Client (as defined below), (iii) make any statement or take any actions that may interfere with Fifth Third's or any Affiliate's business relationships with any Client, (iv) contact either directly or indirectly any Client or otherwise induce or attempt to induce any Client to enter into any business relationship with any person or firm other than Fifth Third or an Affiliate relating to Banking Services of any type, (v) endeavor or entice away from Franklin or Fifth Third any person who the Director has actual knowledge that such person is, or was at any time during the period the Director was employed by Franklin or Fifth Third or during the Restricted Period, employed by or associated with Fifth Third or Franklin as an executive, officer, employee, manager, salesperson, consultant, independent contractor, representative or other agent, or (vi) take any actions that may interfere with Fifth Third's property rights in lists of Clients or otherwise diminish the value of such lists to Fifth Third. Notwithstanding any provision contained in this AgreementSection 6, including the Rental restrictions contained herein shall not be applicable to any activity of the Director or any activity of his or her spouse which existed at the time of this Agreement and all documents related which was disclosed by the Director to the Project BondsFifth Third, and may be waived by Fifth Third with respect to one or more Directors in writing at any time and from time to time in Fifth Third's sole discretion after receipt of a written request from any Director.
Appears in 2 contracts
Sources: Affiliation Agreement (Fifth Third Bancorp), Affiliation Agreement (Fifth Third Bancorp)
Conditions Precedent to Closing. This Agreement shall become effective on the date (“Closing Date”) that each of the following conditions has been satisfied (or waived in accordance with this Agreement):
(a) The Company’s obligation Each Loan Document shall have been duly executed and delivered to consummate the Closing is expressly conditioned upon the satisfaction or waiver Administrative Agent by each of the following:signatories thereto, and each Obligor shall be in compliance with all terms of each Loan Document to which it is a party.
(b) Administrative Agent shall have received (i) All representations acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, or arrangements reasonably satisfactory to Administrative Agent for such filings and warranties recordations shall have been made (and all filing and recording fees and taxes in connection therewith shall have been duly paid or arrangements reasonably satisfactory to Administrative Agent for the payment of the Public Parties set forth in Section 5.1 above such fees and taxes shall be true have been made), and correct as of the Closing Date as if made on the Closing Date;
(ii) No event subject to Section 10.1.15, UCC and Lien searches and termination documents or other evidence reasonably satisfactory to Administrative Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Administrative Agent shall have received Lien Waivers with respect to any location where Eligible Spare Parts Inventory is held (other than Inventory located at customer locations in the Ordinary Course of default beyond any applicable notice Business); provided that no such Lien Waiver is required so long as a Rent and cure periods Charges Reserve has been deducted from the Borrowing Base in respect of such Eligible Spare Parts Inventory.
(d) Subject to Section 10.1.15, Administrative Agent shall have received duly executed Deposit Account Control Agreements on each Deposit Account (other than an Excluded Account and the part Secured Notes Collateral Account) (i) that is a collections account and (ii) as required by Section 8.6, Securities Account Control Agreements and agreements establishing each Dominion Account and, if applicable, related lockbox, in form and substance reasonably satisfactory to Administrative Agent.
(e) Administrative Agent shall have received certificates, in form and substance reasonably satisfactory to it, from a knowledgeable Senior Officer of the Public Parties has occurred and is continuing hereunder Company certifying that, as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation , after giving effect to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project Transactions (including, without limitation, permittingany initial Loans made or Letters of Credit issued or Existing Letters of Credit deemed issued hereunder on the Closing Date), the Company and its Subsidiaries, taken as described hereina whole, are Solvent.
(f) Administrative Agent shall have received a certificate of a duly authorized Senior Officer of each Obligor, certifying as of the Closing Date (i) that attached copies of such Person’s Organizational Documents, as applicable, are true and complete, and in full force and effect, without amendment except as shown; provided (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this subsection credit facility; and (Ciii) to the extent title, name and signature of each Person authorized to sign the Loan Documents on behalf of such Person, as applicable. Administrative Agent may conclusively rely on this certificate until it is otherwise notified by such Person in writing.
(g) Administrative Agent shall have received a written opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, in form and substance reasonably satisfactory to Administrative Agent.
(h) Administrative Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Person’s jurisdiction of organization. Administrative Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Person’s jurisdiction of organization as of a reasonably recent date.
(i) Subject to Section 10.1.15, Administrative Agent shall have received certificates of insurance for the insurance policies carried by Obligors reasonably satisfactory to Administrative Agent, as well as all necessary endorsements naming Administrative Agent as an additional insured and lender loss payee with respect to the Collateral, as the case may be, all in compliance with the Loan Documents.
(j) No event shall have occurred or circumstance exist since December 31, 2017 that has or would reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect.
(k) Borrowers shall have paid all reasonable and documented costs and expenses of the Lead Left Arranger, Administrative Agent and Lenders (including, without limitation, reasonable and documented fees (including such fees agreed upon in the Engagement Letter), disbursements and other charges of one firm of counsel for Administrative Agent, the Lead Left Arranger and their Affiliates, due diligence expenses, the costs of lender meetings, and the audit and appraisal fees and expenses (including, without limitation, reasonable and documented costs and expenses for travel, lodging and meals for personnel, out-of-pocket examination costs and customary charges for field examinations and the preparation of reports) for Administrative Agent) for which invoices with reasonable detail and supporting documentation have been presented at least 1 Business Day prior to the Closing Date.
(l) Administrative Agent shall have received a certificate, in form and substance reasonably satisfactory to it, of a duly authorized Senior Officer of each Borrower certifying that, as of the Closing Date, upon the Borrowing of Loans, giving effect to the issuance or deemed issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith and therewith, as well as any payables stretched beyond their customary payment practices, on the Closing Date Excess Availability (based on the Borrowing Base Report described in clause (r) below) shall be at least $10,000,000.
(m) Administrative Agent shall have received a certificate, in form and substance reasonably satisfactory to it, of a duly authorized Senior Officer of each Obligor, certifying that, as of the Closing Date, the conditions specified in Sections 6.1(s) and (u) and Sections 6.2(a) and (b) are satisfied.
(n) Administrative Agent and Lenders shall have received (i) pro forma consolidated financial statements of the Company and its Subsidiaries and consolidating financial statements of the Borrowers, in each case, giving effect to the initial funding of Loans, issuance of Letters of Credit and the funding of the Secured Notes on or before the Closing Date, (ii) forecasts prepared by management of the Borrowers (each in form reasonably satisfactory to Administrative Agent and the Lenders, and evidencing Borrowers’ ability to comply with the financial covenant set forth in Section 10.3) of balance sheets, income statements and cash flow statements on a quarterly basis for the first year following the Closing Date and on an annual basis for each year thereafter during the term of this Agreement, (iii) Audited Financial Statements, (iv) the unaudited consolidating financial statements of the Borrowers as of and for each Fiscal Year ended December 31, 2017, December 31, 2016 and December 31, 2015 and (v) unaudited consolidated financial statements of the Company and its Subsidiaries and consolidating financial statements of the Borrowers, in each case, for the Fiscal Quarter ended March 31, 2018.
(o) Administrative Agent and Lenders shall be reasonably satisfied with the capital structure of the Company and its Subsidiaries.
(p) Each Lender shall have received internal credit approval for the extension of credit under this Agreement.
(q) (i) Administrative Agent shall have received, at least 3 Business Days prior to the Closing Date, all documentation and other information required by Governmental Authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing at least 5 Business Days prior to the Closing Date by Administrative Agent or any Lender; (ii) at least 3 Business Days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to Administrative Agent and each Lender that so requests in writing at least 5 Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to such Borrower and (iii) Administrative Agent shall have received reasonably satisfactory background checks on key members of management of each Borrower.
(r) Administrative Agent shall have received a Borrowing Base Report dated as of May 31, 2018 in form and substance reasonably satisfactory to it, including aging reports for the Eligible Accounts Receivable.
(s) There is no action, suit, investigation, litigation or proceeding pending or, to the knowledge of the Borrowers, threatened in any court or before any arbitrator or Governmental Authority that (a) either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect or (b) relates to this Agreement, any other Loan Document or any Transaction.
(t) Administrative Agent shall have received a certificate, in form and substance reasonably satisfactory to it, of a duly authorized Senior Officer of each Obligor, (i) either (x) attaching copies of all consents and approvals required in connection with the execution, delivery and performance by any Obligor and the validity against any such Obligors of the Loan Documents to which it is a party, and such consents and approvals shall be in full force and effect, or (y) certifying that no such consents, licenses or approvals are so required and (ii) certifying no law or regulation is applicable that could restrain, prevent or impose any material adverse conditions on the Obligors.
(u) After giving effect to the Transactions, neither the Company nor its Subsidiaries shall have any Material Debt for borrowed money other than (i) the State has assumed the responsibility and cost of defending any such litigationSecured Notes, (ii) the State is actively and vigorously defending any such pending litigation, Senior Notes and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts this Agreement.
(v) The Lenders shall have received the ability fees required to be paid under Section 3.2.4. Without limiting the generality of the Company provisions of Section 13.3, for purposes of determining compliance with the conditions specified in this Section 6.1, each Lender and Issuing Bank that has executed and delivered (and, as applicable, released from escrow) its signature page to actively construct, develop or use the Project, then this closing condition Agreement shall be deemed to (i) have consented to, approved or accepted or to be satisfied with respect with, each document or other matter required thereunder to such pending be consented to or threatened litigation;
approved by or acceptable or satisfactory to a Lender and Issuing Bank and (viii) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable received internal credit approval for the consummation extension of the transactions contemplated by credit under this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company in each case, unless Administrative Agent shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on received notice from such Lender or Issuing Bank prior to the Closing; andproposed Closing Date specifying its objection thereto.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 2 contracts
Sources: Loan and Security Agreement (CSI Compressco LP), Loan and Security Agreement (CSI Compressco LP)
Conditions Precedent to Closing. 4.01 Operating Partnership's obligation under this Agreement to consummate the transactions contemplated herein is subject to the fulfillment of each of the following conditions.
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) All representations and warranties of the Public Parties set forth in Section 5.1 above Pilevsky contained herein shall be true true, accurate and correct as of the Closing Date as if made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder in all material respects as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, except to the extent not previously expended;they expressly relate only to an earlier date.
(vb) There All consents and approvals of governmental authorities and parties to agreements to which Pilevsky is no litigation pending a party or threatened by which any asset owned by Pilevsky is bound that are required with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees been obtained and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof copies thereof shall have been delivered to be paid on Operating Partnership at or prior to the Closing; and.
(c) On or prior to the Closing Date, (i) Pilevsky shall not have applied for or consented to the appointment of a receiver, trustee or liquidator for himself or any of his assets unless the same shall have been discharged prior to the Closing Date, and no such receiver, liquidator or trustee shall have otherwise been appointed, unless same shall have been discharged prior to the Closing Date, (ii) Pilevsky shall not have admitted in writing an inability to pay his debts as they mature, (iii) The Company and Pilevsky shall not have made a general assignment for the Public Parties benefit of creditors, (iv) Pilevsky shall not have been adjudicated a bankrupt or insolvent, or had a petition for reorganization granted with respect to Pilevsky, (v) Pilevsky shall not have filed a voluntary petition seeking reorganization or an arrangement with creditors or taken advantage of any bankruptcy, reorganization, insolvency, readjustment or debt, dissolution or liquidation law or statute, or filed an answer admitting the material allegations of a petition filed against him in any proceeding under any such law or statute, or had any petition filed against him in any proceeding under any such law or statute unless the same shall have agreed upon the form of all customary documentsbeen dismissed, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related canceled or terminated prior to the Project BondsClosing Date.
Appears in 2 contracts
Sources: Redemption Agreement (Philips International Realty Corp), Redemption Agreement (Philips International Realty Corp)
Conditions Precedent to Closing. 4.01 Operating Partnership's obligation under this Agreement to consummate the transaction contemplated herein is subject to the fulfillment of each of the following conditions.
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) All representations and warranties of the Public Parties set forth in Section 5.1 above Pilevsky contained herein shall be true true, accurate and correct as of the Closing Date as if made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder in all material respects as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, except to the extent not previously expended;they expressly relate only to an earlier date.
(vb) There All consents and approvals of governmental authorities and parties to agreements to which Pilevsky is no litigation pending a party or threatened by which any of his assets is bound that are required with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees been obtained and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof copies thereof shall have been delivered to be paid on Operating Partnership at or prior to the Closing; and.
(c) On or prior to the Closing Date, (i) Pilevsky shall not have applied for or consented to the appointment of a receiver, trustee or liquidator for himself or any of his assets unless the same shall have been discharged prior to the Closing Date, and no such receiver, liquidator or trustee shall have otherwise been appointed, unless same shall have been discharged prior to the Closing Date, (ii) Pilevsky shall not have admitted in writing an inability to pay his debts as they mature, (iii) The Company and Pilevsky shall not have made a general assignment for the Public Parties benefit of creditors, (iv) Pilevsky shall not have been adjudicated a bankrupt or insolvent, or had a petition for reorganization granted with respect to him, (v) Pilevsky shall not have filed a voluntary petition seeking reorganization or an arrangement with creditors or taken advantage of any bankruptcy, reorganization, insolvency, readjustment or debt, dissolution or liquidation law or statute, or filed an answer admitting the material allegations of a petition filed against him in any proceeding under any such law or statute, or had any petition filed against him in any proceeding under any such law or statute unless the same shall have agreed upon the form of all customary documentsbeen dismissed, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related canceled or terminated prior to the Project BondsClosing Date.
Appears in 2 contracts
Sources: Redemption Agreement (Philips International Realty Corp), Redemption Agreement (Philips International Realty Corp)
Conditions Precedent to Closing. (a) The Company’s obligation to consummate the Closing is expressly Equity Conversion will be conditioned upon satisfaction of terms and conditions in the satisfaction or waiver of the following:
(i) All representations Conversion Agreement, as provided by, consistent with, and warranties of the Public Parties set forth in Section 5.1 above shall be true and correct as of the Closing Date as if made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation subject to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing DateRestructuring Support Agreement, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), the following: • The Restructuring Support Agreement shall be in full force and effect as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake Equity Conversion and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan shall not have been obtained, amended or modified without the Wetland Mitigation credits prior consent of the Required EFIH Unsecured Consenting Creditors in violation of the terms of the Restructuring Support Agreement; • The Bankruptcy Court shall have been purchasedentered the Disclosure Statement Order, and such Wetland Permit does order shall be in full force and effect and not contain conditions which delay subject to a stay; • The Bankruptcy Court shall have entered the commencement Confirmation Order, and such order shall be in full force and effect and not subject to a stay; • The Registration Rights Agreement shall be in form and substance reasonably satisfactory to the Required EFIH Unsecured Consenting Creditors; • Any and all governmental and third party consents and approvals necessary in connection with the Equity Conversion and the Plan Restructuring Documents shall have been obtained and shall remain in effect; • The Private Letter Ruling shall have been obtained from the IRS; • The Plan shall have become, or continuation simultaneously with the issuance of the Comprehensive Grading Work New Reorganized EFH Stock will become, effective; • The covenants to be performed by more than 120 days; and
(vii) The Company EFH and EFIH in the Public Parties Conversion Agreement shall have agreed upon been performed and complied with in all material respects on the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation closing date of the transactions contemplated by this Agreement, including Equity Conversion; and • There shall not have been a continuing default (or any event which with the Rental Agreement and all documents related to giving of notice or lapse of time or both would be a default) under the Project BondsSecond Lien DIP Facility.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 2 contracts
Sources: Restructuring Support and Lock Up Agreement (Energy Future Holdings Corp /TX/), Investment Commitment (Energy Future Holdings Corp /TX/)
Conditions Precedent to Closing. (A) It shall be a condition precedent to Purchaser’s obligations to consummate the transactions contemplated by this Agreement that (a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) All all representations and warranties of the Public Parties set forth in Section 5.1 above shall be made herein by Seller are true and correct in all material respects as of the Closing Date as if made on the each Closing Date;
(ii) No event of default beyond any applicable notice , and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed all covenants made by Seller herein are fully complied with in all material respects, other than obligations required to issue the Title Policy and the Public Parties have delivered any documents reasonably requested be performed by the Title Company in order for the Title Company to issue the Title Policy in accordance Seller at Closing, which obligations must be fully complied with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects at each Closing, (b) as of the applicable each Closing Date, to the extent not previously expended;
(v) There is there shall exist no litigation pending or threatened with respect to actions, suits, arbitrations, claims, attachments, proceedings, assignments for the Project Site which (A) has resulted in a final order to benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings that could adversely affect the effect that the Project Site is subject to local zoning codes operation or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability value of the Company Property or the Public Parties Seller’s ability to perform their its obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to under this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigationAgreement, and (iiic) as of each Closing Date, there shall have been no injunctive relief has been granted by material adverse change in the performance of any court of competent jurisdiction as part of such litigation which impacts the ability of the Company self storage facilities comprising the Property to actively constructbe acquired at such Closing, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 in any of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete items reviewed by Purchaser during the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documentsApproval Period, including without limitation the Definitive DocumentsDue Diligence Items, necessary failing which, Purchaser, at its option, and reasonable for in addition to any other remedy available, shall be entitled to terminate this Agreement and receive a return of the consummation of ▇▇▇▇▇▇▇ Money.
(B) It shall be a condition precedent to Seller’s obligations to consummate the transactions contemplated by this AgreementAgreement that (a) all representations and warranties made herein by Purchaser are true and correct in all material respects as of each Closing Date, including the Rental Agreement and all documents related covenants made by Purchaser herein are fully complied with in all material respects, other than obligations required to the Project Bonds.
be performed by Purchaser at Closing, which obligations must be fully complied with in all respects at each Closing,, and (b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the each Closing Date; and
(ii) The Company , there shall have paid all fees and expenses of the Project Bonds as set forth hereinexist no pending or threatened actions, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documentssuits, including without limitation the Definitive Documentsarbitrations, necessary and reasonable claims, attachments, proceedings, assignments for the consummation benefit of the transactions contemplated by creditors, insolvency, bankruptcy, reorganization or other proceedings that could adversely affect Purchaser’s ability to perform its obligations under this Agreement, including the Rental Agreement and all documents related failing which, Seller shall be entitled to the Project Bondspursue its remedies under this Agreement.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Strategic Storage Growth Trust, Inc.), Purchase and Sale Agreement (Strategic Storage Trust II, Inc.)
Conditions Precedent to Closing. (a) The Company’s obligation All obligations of Purchaser under this Agreement are subject to consummate the Closing is expressly conditioned upon fulfillment, on or prior to the satisfaction or waiver closing date, of each of the followingfollowing conditions:
(i) All 9.1. That the representations and warranties of the Public Parties set forth in Section 5.1 above Acquired Company and of the Purchaser shall be true at and correct as of the Closing Date closing date as if though such representations were made at and as of such time;
9.2. That Purchaser shall have received a written opinion, dated on the Closing Date;
(ii) No event closing date, of default beyond counsel representing the Acquired Company, to the effect that the Acquired Company has been duly incorporated and is in good standing under the laws of the State of its organization with a capitalization as represented in this Agreement; that the Acquired Company is duly licensed or qualified to do business in any applicable notice and cure periods all States or jurisdictions in which it does business or where in the opinion of Counsel such qualification is required; that such counsel knows of no litigation, investigation, or governmental proceeding pending or threatened against the Acquired Company which might result in any material adverse change in the business, properties, or financial condition of the Acquired Company or in any liability on the part of the Public Parties Acquired Company; and that the assignment and delivery of the Shares of the Acquired Company pursuant to this Agreement will vest in Purchaser all right, title and interest in and to such Shares, free and clear of all liens, encumbrances and equities.
9.3. That Purchaser shall have received a certificate dated on the closing date and signed by the President of the Acquired Company, that since the date of this Agreement the Acquired Company has occurred not done or permitted to be done any of the acts or things prohibited by this Agreement;
9.4. That the auditors and is continuing hereunder accountants appointed by the Purchaser to examine the books and records of the Acquired Company shall not as of the Closing Dateclosing date have rendered a report to Purchaser stating that the financial condition of Acquired Company is not substantially as represented herein or that in their opinion the Acquired Company has contingent liabilities material in amount beyond that described in the Balance Sheet annexed hereto or as disclosed herein;
(iii) The Title 9.5. That no claim or liability not fully covered by insurance shall have been asserted against the Acquired Company is irrevocably committed nor has it suffered any loss on account of fire, flood, accident or other calamity of such a character as to issue materially adversely affect their financial condition, regardless of whether or not such loss shall have been insured, and that Purchaser shall have received on the Title Policy and the Public Parties have delivered any documents reasonably requested closing date a certificate signed by the Title President of the Acquired Company in order for the Title Company to issue the Title Policy in accordance with the terms hereofso stating;
(iv) The Public Parties have provided written confirmation to the Company that 9.6. That all funds allocated covenants and indemnifications made herein by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Acquired Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on performed at or prior to the Closing; and.
(iii) The Company and the Public Parties closing shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.been duly performed;
Appears in 2 contracts
Sources: Purchase and Sale of Stock Agreement (Madison Ave. Media, Inc.), Share Exchange Agreement (Kahzam, Inc.)
Conditions Precedent to Closing. SECTION 7.1. Conditions to the Company's Obligations. The obligations of the Company with respect to a Purchaser hereunder required to be performed on the Closing Date shall be subject to the satisfaction or waiver, at or prior to the Closing, of the following conditions:
(a) The Company’s obligation to consummate representations and warranties of such Purchaser contained in this Agreement shall have been true and correct when made and, in addition, shall be repeated and true and correct in all material respects on and as of the Closing is expressly conditioned upon Date with the same force and effect as though made on and as of the Closing Date.
(b) Such Purchaser shall have performed in all material respects all obligations and agreements, and complied in all material respects with all covenants contained in this Agreement to be performed and complied with by such Purchaser at or prior to the Closing Date.
(c) Any applicable waiting period under the HSR Act with respect to the purchase by such Purchaser shall have expired or been terminated.
SECTION 7.2. Conditions to Each Purchaser's Obligations. The obligations of a Purchaser hereunder required to be performed on the Closing Date shall be subject to the satisfaction or waiver waiver, at or prior to the Closing, of the followingfollowing conditions:
(ia) All The representations and warranties of the Public Parties set forth Company contained in Section 5.1 above this Agreement (i) shall be have been true and correct when made and (ii) shall be (A) in the case of representations and warranties that are qualified as to materiality or Material Adverse Effect, true and correct and (B) in all other cases, true and correct in all material respects, in the case of clauses (A) and (B), as of the Closing Date with the same force and effect as if though made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;.
(iiib) The Title Company is irrevocably committed shall have performed in all material respects all of its obligations, agreements and covenants contained in this Agreement to issue be performed and complied with at or prior to the Title Policy Closing Date.
(c) The Company shall have entered into the Registration Rights Agreement.
(d) The Company shall have filed the Certificate of Designation with the Secretary of State of the State of Delaware.
(e) Any applicable waiting period under the HSR Act with respect to the purchase by such Purchaser shall have expired or been terminated.
(f) With respect to the Closing of the purchase by Microsoft, the earlier of (x) December 15, 1999, or (y) the expiration or other termination of the waiting period under the HSR Act with respect to the filing under the HSR Act by the HMTF Purchaser, shall have occurred prior to or simultaneously with such Closing; and with respect to the Public Parties Closing of the purchase by DB, the purchase by the HMTF Purchaser shall have occurred prior to or simultaneously with such Closing.
(g) The Company shall have delivered any documents reasonably requested to such Purchaser a certificate executed by it or on its behalf by a duly authorized representative, dated the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;effect that each of the conditions specified in paragraph (a) through (e) of this Section 7.2 has been satisfied.
(vh) There is no litigation pending No provision of any Applicable Law, injunction, order or threatened decree of any Governmental Entity shall be in effect which has the effect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the Transactions.
(i) Such Purchaser shall have received an opinion of counsel to the Company, dated the Closing Date, and addressed to such Purchaser, in form and substance reasonably acceptable to the Purchaser.
(j) Such Purchaser shall have received certificates representing the Shares purchased by such Purchaser concurrently with the Company's receipt of the Purchase Price for such Shares.
(k) with respect to the Project Site which (A) has resulted in a final order HMTF Purchaser and the Olympus Funds only, the Company shall have delivered to the effect that HMTF Purchaser and the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned Olympus Funds a Management Rights Agreement executed by the State, leased Company and addressed to the JDAHMTF Funds and the Olympus Growth Fund III, and rented L.P., respectively.
(l) there shall not have occurred (i) any event, circumstance, condition, fact, effect or other matter which has had or could reasonably be expected to the Company, (B) would have a material impact adverse effect (x) on the business, assets, financial condition, prospects, or results of operations of the Company and the Subsidiaries taken as a whole or (y) on the ability of the Company or and the Public Parties Subsidiaries to perform their obligations hereunder (other than litigation relating on a timely basis any material obligation under this Agreement or to development consummate the Issuance contemplated hereby; or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) any material disruption of or material adverse change in financial, banking or capital market conditions that would reasonably be expected to materially impair the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the Company's ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown obtain financing on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bondsterms.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Teligent Inc), Stock Purchase Agreement (Hicks Thomas O)
Conditions Precedent to Closing. 10.1 The obligations of RM Eastview under this Agreement to assign the Ground Lease and to perform the other covenants and obligations to be performed by RM Eastview on or before the Closing Date shall be subject to the following conditions (all or any of which may be waived, in whole or in part, by RM Eastview):
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) All representations and warranties of the Public Parties set forth in Section 5.1 above made by ▇▇▇▇-▇▇▇▇ herein shall be true and correct in all material respects with the same force and effect as of the Closing Date as if though such representations and warranties had been made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iiib) The Title Company is irrevocably committed to issue the Title Policy RM Eastview shall have performed all covenants and the Public Parties have delivered any documents reasonably requested obligations undertaken by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available RM Eastview herein in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened and complied with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit all conditions required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order this Agreement to undertake and complete the Comprehensive Grading Work as shown be performed or complied with by it on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of before the Closing Date; and
(iic) ▇▇▇▇-▇▇▇▇ shall have delivered to RM Eastview all of the documents provided herein for said delivery.
10.2 The obligations of ▇▇▇▇-▇▇▇▇ to assume the Ground Lease and to perform the other covenants and obligations to be performed by ▇▇▇▇-▇▇▇▇ on or before the Closing Date shall be subject to the following conditions (all or any of which may be waived, in whole or in part, by ▇▇▇▇-▇▇▇▇):
(a) RM Eastview shall have taken, at its sole cost and expense and in a manner reasonably satisfactory to ▇▇▇▇-▇▇▇▇, such necessary action (including but not limited to subdivision of the Land, if required) to cause the Property to be assessed as a separate tax lot;
(b) The Company County shall have paid all fees duly executed, acknowledged and expenses delivered to ▇▇▇▇-▇▇▇▇ a landlord estoppel certificate as provided for in Section 22.1 of the Project Bonds Ground Lease;
(c) The survey of the Property shall include a certification to ▇▇▇▇-▇▇▇▇ and its successors and assigns;
(d) The representations and warranties made by RM Eastview herein shall be true and correct in all material respects with the same force and effect as though such representations and warranties had been made on and as of the Closing Date;
(e) RM Eastview shall have performed all covenants and obligations undertaken by RM Eastview herein in all respects and complied with all conditions required by this Agreement to be performed or complied with by it on or before the Closing Date;
(f) The Title Company is unconditionally prepared to issue a Title Policy meeting the requirements for an "insurable title" as set forth herein, and in Section 3.3 hereof;
(g) The Property shall be in compliance with all other fees and expenses Environmental Laws;
(h) There shall not be any sewer moratorium affecting the Property; and
(i) RM Eastview shall have delivered to ▇▇▇▇-▇▇▇▇ all of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; anddocuments provided herein for said delivery.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 2 contracts
Sources: Agreement to Assign Ground Lease (Mack Cali Realty Corp), Agreement to Assign Ground Lease (Mack Cali Realty L P)
Conditions Precedent to Closing. The obligation of the Investor hereunder to purchase the Note at the Closing is subject to the satisfaction, at or before the date of the Closing, of each of the following conditions, provided that these conditions are for the Investor’s sole benefit and may be waived by the Investor at any time in its sole discretion.
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) All representations Representations and warranties of the Public Parties set forth in Section 5.1 above shall be true and correct as of the Closing Date as if made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability Warranties of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially are true and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bondscorrect.
(b) The Public Parties’ obligation No event shall have occurred since the date of this Agreement that could result in, or reasonably be expected to consummate the Closing is expressly conditioned upon the satisfaction result in a Material Adverse Effect, where “Material Adverse Effect” shall mean any condition, circumstance, or waiver of the following:
situation that may result in, or would reasonably be expected to result in (i) No event of default beyond any applicable notice and cure periods a material adverse effect on the part legality, validity or enforceability of this Agreement or the Note, (collectively, the “Transaction Documents”), (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company, or (iii) a material adverse effect on the Company or it’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document.
(c) The shares of the Company’s common stock (the “Common Stock”) shall be authorized for quotation or trading on the OTC Markets OTCQB (the “Primary Market”) and trading in the common stock of the Company has occurred and is continuing as of the Closing Date; andshall not have been suspended for any reason.
(iid) The Company shall have paid all fees and expenses of the Project Bonds as set forth hereinis, and all other fees and expenses has been for a period of the JDA as required by Section 3.6(c) hereof to be paid on or at least 90 days immediately prior to the Closing; and, subject to the reporting requirements of section 13 or 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”).
(iiie) The Standby Equity Distribution Agreement dated February 27, 2020 between the Company and the Public Parties shall have agreed upon Investor (the “SEDA”) is in full force and effect.
(f) The Company’s registration statement on Form S-3 (File No. 333-232614) under Section 5 of the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”) or another registration statement on a form of all customary documents, including without limitation promulgated by the Definitive Documents, necessary and reasonable SEC for which the Company then qualifies for the consummation registration of the transactions contemplated offer and sale of securities to be offered and sold by this Agreementthe Company, as the same may be amended and supplemented from time to time and including any information deemed to be a part thereof pursuant to Rule 430B under the Rental Agreement Securities Act and all documents related any successor registration statement filed by the Company with the SEC under the Securities Act on a form promulgated by the SEC for which the Company then qualifies and which form shall be available for the registration securities to be offered and sold by the Project BondsCompany, shall be effective (collectively the “Registration Statement”).
Appears in 2 contracts
Sources: Note Purchase Agreement (KULR Technology Group, Inc.), Note Purchase Agreement (KULR Technology Group, Inc.)
Conditions Precedent to Closing. 7.1 Conditions to the Company's Obligations. The obligations of the Company with respect to the Investors required to be performed on the Closing Date shall be subject to the satisfaction or waiver in writing, at or prior to the Closing, of the following conditions:
(a) The Company’s obligation to consummate representations and warranties of each Investor contained in this Agreement which are qualified by any "materiality", "material adverse effect" or any similar qualifier shall be true and correct in all respects and the representations and warranties of such Investor which are not so qualified shall be true and correct in all material respects, in each case on and as of the date hereof and on and as of the Closing is expressly conditioned upon Date, as if made on and as of the Closing Date.
(b) Each Investor shall have performed in all material respects all obligations and agreements, and complied in all material respects with all covenants contained in this Agreement to be performed and complied with by such Investor at or prior to the Closing Date.
(c) No provision of any Applicable Law, injunction, order or decree of any Governmental Authority shall be in effect which has the effect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the Transactions.
(d) The Company shall have received from each Investor certificates representing the aggregate number of shares of Original Preferred Stock and the aggregate number of Original Warrants set forth opposite such Investor's name on Schedule A hereto concurrently with each Investor's receipt from the Company of the Notes in an aggregate principal amount and the pro rata portion of the Cash Proceeds set forth opposite such Investor's name on Schedule A hereto.
(e) Each Investor shall have executed and delivered the Term Loan Agreement.
(f) Each Investor shall have executed and delivered the Amended Registration Rights Agreement.
(g) Each Investor shall have executed and delivered the Termination of Stockholders' Agreement.
(h) The Company shall have received the written opinion of Evercore Partners, Inc., as contemplated by Section 2.2(c).
(i) The Company shall have received letters of resignation of each of the two directors designated by the Sandler Investors as holders of Original Preferred Stock and each of the two directors designated by the MidOcean Investor as a holder of Original Preferred Stock.
7.2 Conditions to Each Investor's Obligations. The obligations of each Investor required to be performed on the Closing Date shall be subject to the satisfaction or waiver in writing, at or prior to the Closing, of the followingfollowing conditions:
(ia) All The representations and warranties of the Public Parties set forth Company contained in Section 5.1 above this Agreement which are qualified by any "materiality", "material adverse effect" or any similar qualifier shall be true and correct in all respects and the representations and warranties of the Company which are not so qualified shall be true and correct in all material respects, in each case on and as of the Closing Date as if made date hereof and on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy , as if made on and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date.
(b) The Company shall have performed in all material respects all of its obligations and agreements, and complied with covenants contained in this Agreement to be performed and complied with at or prior to the Closing Date.
(c) No provision of any Applicable Law, injunction, order or decree of any Governmental Authority shall be in effect which has the effect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the Transactions.
(d) The Company shall have delivered to such Investor a certificate executed by it or on its behalf by a duly authorized representative, dated the Closing Date, to the extent not previously expended;effect that each of the conditions specified in paragraph (a) through (c) and (l) of this Section 7.2 has been satisfied.
(ve) There is no litigation pending or threatened with respect The Company shall have delivered to such Investor the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned certificate executed by the State, leased to the JDA, and rented to Secretary of the Company, dated the Closing Date, as contemplated by Section 2.2(b)(vii).
(Bf) The Company and each of the other parties thereto (other than the Investors) shall have executed and delivered the Term Loan Agreement, and such Investor shall have received evidence satisfactory to it in its sole discretion that the closing conditions under the Term Loan Agreement have been satisfied and the transactions contemplated thereby shall be consummated simultaneously with the Exchange.
(g) The Company and each of the parties thereto (other than the Investors) shall have executed and delivered the Amended Registration Rights Agreement.
(h) The Company and the each of the parties thereto (other than the Investors) shall have executed and delivered the Termination of Stockholders Agreement.
(i) Such Investor shall have received the Opinion, dated as of the Closing Date, and addressed to such Investor in form and substance reasonably acceptable to the MidOcean Investor and the Sandler Investors.
(j) Such Investor shall have received a long-form good standing certificate of the Company and each Subsidiary, dated as of a date as close as practicable to the Closing Date, issued by the Secretary of State of the State of Delaware, as contemplated by Section 2.2(b)(viii).
(k) Such Investor shall have received the Notes in an aggregate principal amount and the pro rata portion of the Cash Proceeds set forth opposite such Investor's name on Schedule A hereto concurrently with the Company's receipt of the certificates representing the aggregate number of shares of Original Preferred Stock and the aggregate number of Original Warrants set forth opposite such Investor's name on Schedule A hereto.
(l) There shall not have occurred any event, circumstance, condition, fact, effect or other matter which has had or would reasonably be expected to have a material impact adverse effect (x) on the condition (financial or otherwise), business, properties, assets, liabilities, operations or results of operations of the Company and the Subsidiaries, taken as a whole or (y) on the ability of the Company or and the Public Parties Subsidiaries to perform their obligations hereunder on a timely basis any material obligation under this Agreement or to consummate the Exchange contemplated hereby.
(other than litigation relating to development or permitting of m) The Private Placement shall have been successfully consummated by the Project), or (C) otherwise materially Company on terms and adversely affects the ability of the Parties to develop the Project conditions (including, without limitation, permitting), as described herein; provided that with respect to this subsection (Cthe issuance price of the Common Stock) satisfactory to the extent that (i) MidOcean Investor and the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;Sandler Investors.
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(viin) The Company and the Public Parties shall have agreed upon received the form written opinion of all customary documentsEvercore Partners, including without limitation the Definitive DocumentsInc., necessary and reasonable for the consummation of as contemplated by Section 2.2(c).
(o) All other Investors shall have elected to consummate simultaneously the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bondsother Transaction Documents.
(bp) The Public Parties’ obligation Company's outstanding Senior Subordinated Debentures due 2005 shall have been repaid in full, and satisfactory evidence thereof shall have been delivered to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:Investors.
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(iiq) The Company shall have paid delivered to such Investor evidence of the payment of all fees costs and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as such Investor required by Section 3.6(c) hereof to be paid on or prior reimbursed by the Company pursuant to the Closing; andSection 8.10.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 2 contracts
Sources: Exchange Agreement (Infocrossing Inc), Exchange Agreement (Midocean Capital Partners Lp)
Conditions Precedent to Closing. (A) It shall be a condition precedent to Purchaser's obligations to consummate the transactions contemplated by this Agreement that (a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) All all representations and warranties of the Public Parties set forth in Section 5.1 above shall be made herein by Seller are true and correct in all material respects as of the Closing Date as if made on the each Closing Date;
(ii) No event of default beyond any applicable notice , and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed all covenants made by Seller herein are fully complied with in all material respects, other than obligations required to issue the Title Policy and the Public Parties have delivered any documents reasonably requested be performed by the Title Company in order for the Title Company to issue the Title Policy in accordance Seller at Closing, which obligations must be fully complied with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects at each Closing, (b) as of the applicable each Closing Date, to the extent not previously expended;
(v) There is there shall exist no litigation pending or threatened with respect to actions, suits, arbitrations, claims, attachments, proceedings, assignments for the Project Site which (A) has resulted in a final order to benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings that could adversely affect the effect that the Project Site is subject to local zoning codes operation or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability value of the Company Property or the Public Parties Seller's ability to perform their its obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to under this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigationAgreement, and (iiic) as of each Closing Date, there shall have been no injunctive relief has been granted by material adverse change in the performance of any court of competent jurisdiction as part of such litigation which impacts the ability of the Company self storage facilities comprising the Property to actively constructbe acquired at such Closing, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 in any of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete items reviewed by Purchaser during the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documentsApproval Period, including without limitation the Definitive DocumentsDue Diligence Items, necessary failing which, Purchaser, at its option, and reasonable for in addition to any other remedy available, shall be entitled to terminate this Agreement and receive a return of the consummation of ▇▇▇▇▇▇▇ Money.
(B) It shall be a condition precedent to Seller’s obligations to consummate the transactions contemplated by this AgreementAgreement that (a) all representations and warranties made herein by Purchaser are true and correct in all material respects as of each Closing Date, including the Rental Agreement and all documents related covenants made by Purchaser herein are fully complied with in all material respects, other than obligations required to the Project Bonds.
be performed by Purchaser at Closing, which obligations must be fully complied with in all respects at each Closing,, and (b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the each Closing Date; and
(ii) The Company , there shall have paid all fees and expenses of the Project Bonds as set forth hereinexist no pending or threatened actions, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documentssuits, including without limitation the Definitive Documentsarbitrations, necessary and reasonable claims, attachments, proceedings, assignments for the consummation benefit of the transactions contemplated by creditors, insolvency, bankruptcy, reorganization or other proceedings that could adversely affect Purchaser’s ability to perform its obligations under this Agreement, including the Rental Agreement and all documents related failing which, Seller shall be entitled to the Project Bondspursue its remedies under this Agreement.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Dsi Realty Income Fund Viii), Purchase and Sale Agreement (Dsi Realty Income Fund Vii)
Conditions Precedent to Closing. (a) 4.1 Conditions Precedent to be complied with by the Strategic Partner and the Principals. The Company’s obligation Strategic Partner and the Principals shall fulfill the following Conditions Precedent prior to consummate Closing, unless waived in writing by the Closing is expressly conditioned upon Government:
4.1.1 All Approvals that may be required for the satisfaction or waiver purpose of implementation of this Agreement shall have been obtained by each of the following:Strategic Partner and the Principals.
(i) 4.1.2 All of the representations and warranties made by each of the Public Parties set forth Strategic Partner and the Principals in Section 5.1 above or pursuant to this Agreement shall be true and correct as at the Closing Date and with the same effect as if made at and as of the Closing Date (except as such representations and warranties may be affected by the occurrence of events or transactions expressly contemplated and permitted by this Agreement) and Government shall have received a certificate from each of the Managing Director/ Chief Executive Officer of the Strategic Partner and the Principals, confirming, to the best of his/her knowledge, information and belief (after due inquiry), the truth and correctness of the representations and warranties of the Strategic Partner and the Principals.
4.1.3 Each of the Strategic Partner and the Principals shall have performed or complied with, in all respects, all the obligations, covenants and agreements under this Agreement that are to be performed or complied with by the Strategic Partner or the Principals, prior to Closing.
4.1.4 Each of the Strategic Partner and the Principals shall have executed and delivered the Shareholders Agreement in the form attached hereto as Exhibit A.
4.2 Conditions Precedent to be complied with by Government The Government shall fulfill the following Conditions Precedent on or before the Closing Date unless waived in writing by the Strategic Partner:
4.2.1 All of the representations and warranties of Government and the Company made in or pursuant to this Agreement shall be true and correct as at the Closing Date and with the same effect as if made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
Date (iiiexcept as such representations and warranties may be effected by occurrence of events or transactions expressly contemplated or permitted by this Agreement) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties Strategic Partner shall have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that received (i) the State has assumed the responsibility and cost of defending any such litigationa certificate from Government confirming, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company that to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtainedits knowledge, the Wetland Mitigation credits have been purchasedrepresentations and warranties of Government are true, correct and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of complete, in all customary documentsmaterial respects, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
and (ii) a certificate from the Chairman and Managing Director of the Company, confirming, that to its knowledge, the representations and warranties of the Company are true, correct and complete, in all material respects, as of the Closing Date.
4.2.2 The Government has and shall continue to have marketable title and unfettered right to transfer the Transaction Shares on the Closing Date to the Strategic Partner, free and clear of all liens, in accordance with the terms of this Agreement.
4.2.3 Each of Government and/or the Company shall have paid performed or complied with, in all fees material respect the obligations, covenants and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof agreements in this Agreement that are to be paid on performed or complied with by the Government and/or the Company, prior to the Closing; and.
(iii) 4.2.4 The Company Government and the Public Parties Company shall have agreed upon executed and delivered the Shareholders Agreement in the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.attached hereto as Exhibit A.
Appears in 2 contracts
Conditions Precedent to Closing. The effectiveness of this Agreement (which shall occur on the Closing Date) is subject to the satisfaction of the following conditions precedent as of the Closing Date on or before [—] (and if the following conditions precedent are not satisfied by such time, this Agreement shall automatically terminate):
(a) The Companyeach Party shall have received, in a form satisfactory to it, opinions from counsel to the other Party covering due authorization, execution and delivery of the Capital Protection Documents by the other Party, in each case in form and substance reasonably satisfactory to such Party;
(b) each Party shall have received, in a form satisfactory to it, copies of all Capital Protection Documents duly executed and delivered by the other Party and, where applicable, the Guarantor;
(c) the Capital Protection Provider shall have received, in a form satisfactory to it, a copy of the Custody Agreement duly executed by the Trust and the Custodian;
(d) the Capital Protection Provider shall have received an officer’s obligation to consummate certificate of the Fund, dated as of the Closing is expressly conditioned upon Date, substantially in the satisfaction form of Exhibit B, with appropriate insertions and attachments, reasonably satisfactory in form and substance to the Capital Protection Provider, executed by the President or waiver any Vice President or any Responsible Officer of the following:
Fund and the Secretary or any Assistant Secretary on behalf of the Fund and which certificate shall include (i) All representations the incumbency and warranties signature of the Public Parties set forth in Section 5.1 above shall officers of the Fund executing any Capital Protection Document, or having authorization to execute any certificate, notice or other submission required to be delivered to the Agent or the Capital Protection Provider pursuant to this Agreement, (ii) true and correct complete copies of the Organizational Documents and each Prospectus of the Fund and the Organizational Documents of the Trust, certified as of the Closing Date as if complete copies thereof by the Secretary or an Assistant Secretary of the Fund or the Trust, as applicable, (iii) certificates dated as of a recent date from the Secretary of State or other appropriate authority, evidencing the good standing of each of the Trust and the Fund (x) in the jurisdiction of its organization and (y) in each other jurisdiction where its ownership, lease or operation of property or the conduct of its business requires it to qualify as a foreign Person except, as to this subclause (y), where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect with respect to the Fund;
(e) the Capital Protection Provider shall have received an officer’s certificate of the Adviser, dated as of the Closing Date, substantially in the form of Exhibit B, with appropriate insertions and attachments, reasonably satisfactory in form and substance to the Capital Protection Provider, executed by the President or any Vice President or any Responsible Officer of the Adviser and the Secretary or any Assistant Secretary on behalf of the Adviser and which certificate shall include (i) the incumbency and signature of the officers of the Adviser executing any Capital Protection Document, or having authorization to execute any certificate, notice or other submission required to be delivered to the Agent or the Capital Protection Provider pursuant to this Agreement, (ii) true and complete copies of the Organizational Documents of the Adviser, certified as of the Closing Date as complete copies thereof by the Secretary or an Assistant Secretary of the Adviser, (iii) certificates dated as of a recent date from the Secretary of State or other appropriate authority, evidencing the good standing of the Adviser (x) in the jurisdiction of its organization and (y) in each other jurisdiction where its ownership, lease or operation of property or the conduct of its business requires it to qualify as a foreign Person except, as to this subclause (y), where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect with respect to the Adviser;
(f) the Fund shall have received a certificate dated as of the Closing Date, substantially in the form of Exhibit C, with appropriate insertions and attachments, reasonably satisfactory in form and substance to the Fund, executed by the Secretary or an Assistant Secretary of the Capital Protection Provider on behalf of the Capital Protection Provider, and which certificate shall include the incumbency and signature of the employees of the Capital Protection Provider authorized to execute on behalf of the Capital Protection Provider any Capital Protection Document to which it is party, or having authorization to execute any certificate, notice or other submission required to be delivered to the Fund pursuant to this Agreement;
(g) the Fund shall have received, in a form satisfactory to it, a certificate, dated as of the Closing Date, substantially in the form of Exhibit D, with appropriate insertions and attachments, reasonably satisfactory in form and substance to the Fund, executed by a permanent representative of the Guarantor on behalf of the Guarantor, and which certificate shall include the incumbency and signature of the employees of the Guarantor authorized to execute on behalf of the Guarantor any Capital Protection Document to which it is party, or having authorization to execute any certificate, notice or other submission required to be delivered to the Fund pursuant to this Agreement;
(h) the Capital Protection Provider shall have received, in a form satisfactory to it, a copy of the resolutions, in form and substance reasonably satisfactory to the Capital Protection Provider, of the Board of Directors (or analogous body) of the Fund authorizing the execution, delivery and performance of this Agreement and the other Capital Protection Documents to which it is a party, certified on behalf of the Fund by the Secretary or an Assistant Secretary of the Fund, as of the Closing Date, which certification shall be included in the certificate delivered in respect of the Fund pursuant to Section 3.01(d), shall be in form and substance reasonably satisfactory to the Capital Protection Provider and shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded;
(i) the Capital Protection Provider shall have received, in a form satisfactory to it, a certification that shall be included in the certificate delivered in respect of the Fund pursuant to Section 3.01(d), stating on behalf of the Fund that as of the Closing Date:
(i) The representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the Closing Date, as though made on and as of the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder Fund Event or Knock-Out Event exists as of the Closing Date;
(iii) The Title Company is irrevocably committed No licenses, authorizations, consents or approvals as referred to issue in Section 4.01(n) are required as of the Title Policy Closing Date or, in the case that such documents are required, that they are required and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;attaching copies thereof; and
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects Aggregate Protected Amount as of the applicable Closing Date, to Date does not exceed the extent not previously expendedMaximum Settlement Amount;
(vj) There is no litigation pending or threatened the Fund shall have arranged with respect the Custodian for the Capital Protection Provider and the Agent to directly receive the Project Site which applicable reports and information contained in Schedule II;
(Ak) has resulted the representations and warranties made by the Fund and Capital Protection Provider, respectively, contained in ARTICLE 4 shall be true and correct in all material respects on and as of the Closing Date;
(l) each Party shall have received, in a final order form satisfactory to it, all corporate and other proceedings, and all documents, instruments and other legal matters reasonably requested by such Party evidencing or confirming the effect that accuracy of the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned representations and warranties made by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company other parties hereunder or the Public Parties authority of such other parties to perform their obligations hereunder enter into this Agreement or the other Capital Protection Document to which they are party; and
(other than litigation relating to development or permitting of the Project), or (Cm) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed registration statement of the responsibility Fund shall have been filed with the Commission and cost of defending any such litigationbecome effective, (ii) the State is actively investment policies and vigorously defending any objectives of the Fund as described in the Prospectus contained in such pending litigationregistration statement and the description of the Capital Protection Provider and the Capital Protection Agreement in such Prospectus shall, in each case, be reasonably satisfactory to the Agent, and (iii) no injunctive relief has been granted by the Agent shall have determined in its reasonable discretion that any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect modifications to such pending or threatened litigation;
(vi) All federal authorizations and Prospectus from the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance draft most recently filed with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or Commission prior to the Closing; and.
(iii) The Company date of this Agreement do not materially change the rights of the Capital Protection Provider under, or the terms of, this Agreement. Upon receipt the satisfaction of all documentary conditions precedent and its reasonable satisfaction that all non-documentary conditions precedent have been satisfied on or before [—], each of the Fund and the Public Parties Capital Protection Provider will confirm in writing to the other that the conditions precedent have been satisfied, and upon such written confirmation thereof from the Fund and the Capital Protection Provider on or before [—], the Closing Date shall occur; provided, that such confirmation shall not constitute a waiver of any non-documentary condition that was not satisfied, and the non-defaulting Party shall be entitled to exercise any rights it may have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation hereunder or under applicable Law arising out of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bondsfailure of such condition.
Appears in 2 contracts
Sources: Capital Protection Agreement (Janus Aspen Series), Capital Protection Agreement (Janus Investment Fund)
Conditions Precedent to Closing. SECTION 7.1. Conditions to the Company's Obligations. The obligations of the Company hereunder required to be performed on each Closing Date with respect to the Purchaser shall be subject, at its election, to the satisfaction or waiver (which waiver, if so requested by the Purchaser, shall be made in writing), at or prior to the Closing occurring on such Closing Date, of the following conditions:
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) All representations and warranties of the Public Parties set forth Purchaser contained in Section 5.1 above this Agreement shall be true and correct in all material respects on and as of the Closing Date as if made on the such Closing Date;.
(iib) No event of default beyond any applicable notice The Purchaser shall have performed in all material respects all obligations and cure periods on agreements, and complied in all material respects with all covenants, contained in this Agreement, to be performed and complied with by the part of the Public Parties has occurred and is continuing hereunder as of the Purchaser at or prior to such Closing Date;.
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vic) All federal authorizations material governmental and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are regulatory approvals and clearances and all third-party consents necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreementthe Documents to occur on such Closing Date shall have been obtained and shall be in full force and effect, including the Rental Agreement consummation of such transactions does not and all documents related will not contravene any Applicable Law, except to the Project Bondsextent any contravention or contraventions, individually or in the aggregate, could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(d) The Purchaser shall have delivered to the Company a certificate, executed by the Purchaser or on its behalf by a duly authorized representative, dated as of such Closing Date, certifying that each of the conditions specified in this Section 7.1 has been satisfied with respect to the Purchaser.
(e) All documents, instruments, agreements and arrangements relating to the transactions contemplated by the Documents shall be reasonably satisfactory to the Company, shall have been executed and delivered by the parties thereto and no party to any of the foregoing (other than the Company) shall have breached any of its material obligations thereunder.
SECTION 7.2. Conditions to The Purchaser's Obligations. The obligations of the Purchaser hereunder required to be performed at each Closing shall be subject, at its election, to the satisfaction or waiver (which waiver, if so requested by the Company, shall be made in writing), at or prior to the Closing, of the following conditions:
(a) The representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects when made and on and as of such Closing Date.
(b) The Public Parties’ obligation Company shall have performed in all material respects all obligations and agreements, and complied in all material respects with all covenants, contained in this Agreement and the other Documents, to consummate be performed and complied with by it at or prior to such Closing Date, and there shall exist no Event of Default (as defined in the Closing is expressly conditioned upon Credit Agreement) under the satisfaction or waiver of the following:Credit and Security Agreements.
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(iic) The Company shall have paid all fees entered into or caused to become effective such agreements and expenses governing documents as the Purchaser may deem reasonably appropriate to effect the provisions of the Project Bonds as set forth hereinVoting Agreement, and all other fees each of such agreements and expenses documents shall be in full force and effect.
(d) The Company's Board of Directors shall consist of not more than 11 directors. If immediately following the subject Closing, the Purchaser would beneficially own securities of the JDA Company that constitute, or if exercised, exchanged or converted into Common Stock would constitute, at least 33-1/3% of the aggregate issued and outstanding Common Stock, provided that the Purchaser has given notice to the Company at least two Business Day's prior to a Closing (without duplication) of its Purchaser Nominees, the Company shall have appointed a total of six of such Purchaser Nominees (or such lessor number as required provided by Section 3.6(cthe Purchaser) hereof to serve as members of the Company's Board of Directors.
(e) All Documents and all documents, instruments, agreements and arrangements relating to the transactions contemplated by the Documents shall be paid reasonably satisfactory to the Purchaser, shall have been executed and delivered by the parties thereto, be in full force and effect and no party to any of the foregoing (other than the Purchaser) shall have breached any of its material obligations thereunder.
(f) (i) Since December 31, 1999, no change, occurrence or development shall have occurred, been threatened or become known to the Purchaser that could reasonably be expected to have a Material Adverse Effect, (ii) the Purchaser shall not have become aware of any information or other matter relating to the Company (x) of which the Company (but not the Purchaser) had knowledge on or prior to the Closingdate of this Agreement, (y) that, in the Purchaser's reasonable judgment, is inconsistent with any information or other matter relating to the Company disclosed to the Purchaser by the Company or any of its representatives prior to the date of this Agreement, and (z) would have been viewed by the Purchaser, in its reasonable judgment, as having materially and adversely altered the total mix of information made available to the Purchaser prior to the date of this Agreement. For purposes of this Section 7.2(f), the Company shall be deemed to have "knowledge" of a particular fact or other matter if (I) any individual who is serving, or who has at any time served, as a director, officer or management-level employee of the Company is actually aware of such fact or other matter; andor (II) a prudent individual serving as a director, officer or management-level employee of the Company could be expected to discover or otherwise become aware of such fact or other matter in the diligent exercise of his or her duties in such capacity. There shall have been no material adverse development in any pending litigation that in the reasonable good faith judgment of the board of directors of the Purchaser, after consultation with legal counsel, could reasonably be likely to result in a material adverse judgment against the Company resulting in damages (after taking into account any recoveries under available insurance) in an amount in excess of $3,000,000.
(iiig) The Since December 31, 1999, the business of the Company and the Public Parties shall have agreed upon been operated in compliance with all Applicable Laws, except where the form failure to do so could not reasonably be expected to have a Material Adverse Effect.
(h) There shall be no litigation, proceeding or other action seeking an injunction or other restraining order, damages or other relief from a Governmental Authority pending or threatened which, in the reasonable judgment of all customary documentsthe Purchaser, including without limitation the Definitive Documents, necessary and reasonable for would materially adversely affect the consummation of the transactions contemplated by the Documents on the terms contemplated hereby and thereby and there shall be no litigation, proceeding or other action (including, without limitation, relating to environmental matters or the Benefit Plans) pending or threatened against the Company or its Subsidiaries which could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(i) During the seven-calendar-day period ending on such Closing Date, (A) trading in securities generally on the New York Stock Exchange or the American Stock Exchange or the over-the-counter market shall not have been suspended and minimum prices shall not have been established on either of such exchanges or such market by such exchange or by the Commission, and (B) a general banking moratorium shall not have been declared by Federal or New York or California authorities.
(j) All registration rights agreements with the Company shall have been amended to provide that no other person will exercise any demand or piggy back registration rights without the prior written consent of the Purchaser.
(k) All governmental and regulatory approvals and clearances and all third-party consents necessary for the consummation of all of the transactions contemplated by the Documents to occur on such Closing Date shall have been obtained and shall be in full force and effect, and the Purchaser shall be reasonably satisfied that the consummation of such transactions does not and will not contravene any Applicable Law, except to the extent any contravention or contraventions, individually or in the aggregate, could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(l) The Company shall have delivered to the Purchaser a certificate, executed by it or on its behalf by a duly authorized representative, dated as of such Closing Date, certifying that each of the conditions (other than any condition the fulfillment of which is subject to the reasonable satisfaction of the Purchaser) specified in this AgreementSection 7.2 has been satisfied.
(m) Sidley & Austin, including counsel to the Rental Company, shall have delivered to the Purchaser an opinion, dated such Closing Date, addressed to the Purchaser, substantially in the form attached as Exhibit J hereto.
(n) The Purchaser shall have received delivery of the Securities as set forth hereunder.
(o) The Company shall have delivered to the Purchaser certificates of the appropriate public officials to the effect that each of the Purchaser and its Subsidiaries is a validly existing corporation in good standing in its jurisdiction of organization dated not more than 5 days prior to the Closing Date.
(p) The Company shall have delivered to the Purchaser a certificate of the Secretary of the Company (i) certifying that a true and correct copy of the Charter, Bylaws and all resolutions of the Board of Directors authorizing the execution and delivery of this Agreement and each Document to which the Company is a party and authorizing the performance by the Company of the transactions contemplated hereby and thereby is attached thereto and (ii) containing the incumbency and specimen signature of each of the officers of the Company.
(q) The Company shall have taken all documents related to necessary action so that at least two thirds of the Project BondsCompany's then current Board of Directors shall have approved the election of the Purchaser Nominees.
Appears in 1 contract
Sources: Purchase Agreement (Royal Ahold)
Conditions Precedent to Closing. All obligations of Onsite and WBS under this Agreement are subject to the fulfillment, prior to or at the Closing Date, of all conditions herein set forth, including, but not limited to, receipt by the appropriate party of all deliveries required by Sections 3.2 and 3.3 herein, and fulfillment, prior to the Closing Date, of each of the following conditions:
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) All representations WBS's, Westar Energy's, and Onsite's representations, warranties of the Public Parties set forth and covenants contained in Section 5.1 above this Agreement shall be true and correct as at the time of the Closing Date as if though such representations, warranties and covenants were made on at such time.
(b) WBS shall have performed and complied with all agreements and conditions required by this Agreement to be performed or complied with prior to or at the Closing Date;.
(iic) No event of default beyond any applicable notice Westar Energy shall have performed and cure periods on complied with all agreements and conditions required by this Agreement to be performed or complied with prior to or at the part of Closing Date.
(d) Onsite shall have performed and complied with all agreements and conditions required by this Agreement to be performed or complied with prior to or at the Public Parties has occurred and is continuing hereunder Closing Date.
(e) Effective as of the Closing Date;
(iii, WBS's director(s) The Title Company is irrevocably committed to issue shall have resigned from the Title Policy board and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permittingappointed new director(s), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted nominated by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bondsletter from Onsite's Chief Executive Officer.
(bf) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:Stock Subscription Agreement, and related agreements, between Onsite and Westar Capital shall have closed.
(ig) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing Effective as of the Closing Date; and
(ii, WBS's officer(s) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; andresigned from such positions.
(iiih) The Company Transition Agreement, attached hereto as Exhibit E, between Onsite and the Public Parties Western Resources, Inc. shall have agreed upon been executed and delivered.
(i) The Separation Plan attached hereto as Exhibit F (the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated "Separation Plan") shall have been adopted by this Agreement, including the Rental Agreement and all documents related to the Project BondsOnsite.
Appears in 1 contract
Sources: Plan and Agreement of Reorganization (Onsite Energy Corp)
Conditions Precedent to Closing. This Agreement shall become effective on the date (“Closing Date”) that each of the following conditions has been satisfied (or waived in accordance with Section 15.1.1(d)(i) hereof):
(a) The Company’s obligation Each Loan Document shall have been duly executed and delivered to consummate Administrative Agent by each of the Closing signatories thereto, and Parent, PHR and each Obligor shall be in compliance with all terms of each Loan Document to which it is expressly conditioned a party.
(b) Administrative Agent shall have received (i) acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, or arrangements reasonably satisfactory to the Administrative Agent for such filings and recordations shall have been made (and all filing and recording fees and taxes in connection therewith shall have been duly paid or arrangements reasonably satisfactory to the Administrative Agent for the payment of such fees and taxes shall have been made), and (ii) UCC and Lien searches and other evidence reasonably satisfactory to Administrative Agent that such Liens are the only Liens upon the satisfaction Collateral, except Permitted Liens.
(c) Administrative Agent shall have received any landlord waivers, estoppels or waiver collateral access letters to the extent reasonably requested by Administrative Agent.
(d) Administrative Agent shall have received duly executed Deposit Account Control Agreements on each Deposit Account (i) that is a collections account and (ii) as required by Section 8.5(b), Securities Account Control Agreements and agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, reasonably satisfactory to Administrative Agent.
(e) Administrative Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the Transactions, (i) the Borrowers and the Obligors, taken as a whole, are Solvent; (ii) no Default exists; (iii) the representations and warranties set forth in Section 9 and any other Loan Document are true and correct in all material respects (without duplication of any materiality qualifier contained therein); and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(f) Administrative Agent shall have received a certificate of a duly authorized officer of Parent, PHR and each Obligor, certifying (i) that attached copies of such Person’s Organic Documents, as applicable, are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the following:Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents on behalf of such Person, as applicable. Administrative Agent may conclusively rely on this certificate until it is otherwise notified by such Person in writing.
(g) Administrative Agent shall have received a written opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, as well as any local counsel to Parent, PHR and the Obligors, in form and substance satisfactory to Administrative Agent.
(h) Administrative Agent shall have received copies of the charter documents of Parent, PHR and each Obligor, certified by the Secretary of State or other appropriate official of such Person’s jurisdiction of organization. Administrative Agent shall have received good standing certificates for Parent, PHR and each Obligor, issued by the Secretary of State or other appropriate official of such Person’s jurisdiction of organization.
(i) All representations and warranties Administrative Agent shall have received certificates of the Public Parties set forth in Section 5.1 above shall be true and correct as of the Closing Date as if made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order insurance for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that insurance policies carried by Obligors, as well as all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects necessary endorsements naming Administrative Agent as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened an additional insured and lender loss payee with respect to the Project Site which Collateral, as the case may be, all in compliance with the Loan Documents.
(j) No event shall have occurred or circumstance exist since December 31, 2016 that has or could reasonably be expected to have a Material Adverse Effect and no material adverse change in the quality, quantity or value of any Collateral shall have occurred since December 31, 2016. Administrative Agent shall have completed its business, financial and legal due diligence of Obligors, including a field examination and inventory appraisal (other than with respect to refinery hydrocarbon inventory), with results satisfactory to Administrative Agent. No changes or developments shall have occurred, and no new or additional information, shall have been received or discovered by Administrative Agent or the Lenders regarding Parent, PHR and the Obligors after the date such due diligence investigation has completed that (i) either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or (ii) purports to materially adversely affect the Transactions.
(k) Borrowers shall have paid all reasonable and documented fees and expenses to be paid to Administrative Agent and Lenders on the Closing Date (provided that invoices for expenses shall have been delivered to Borrower Agent one Business Day prior to the Closing Date).
(l) Administrative Agent shall have received a certificate of a duly authorized Senior Officer of each Borrower demonstrating that upon giving effect to the issuance or deemed issuance of Letters of Credit and the funding of the Secured Notes, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability (based on such Borrowing Base Report) shall be at least $20,000,000.
(m) Administrative Agent shall have received evidence satisfactory to Administrative Agent that Company shall have consummated the transactions contemplated by the Secured Notes Indenture and that the gross proceeds of the Secured Notes received by the Company shall be in an aggregate amount not less than $300,000,000.
(n) Administrative Agent shall have received (i) pro forma consolidated financial statements of the Parent and its Subsidiaries giving effect to the Transactions and the funding of the Secured Notes on the Closing Date and a one-year forecast prepared by management of the Company (each in form reasonably satisfactory to Administrative Agent) including (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Companybalance sheet, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project)an income statement, or and (C) otherwise materially and adversely affects such additional information as Administrative Agent may reasonably request, regarding projections for the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation2018 fiscal year, (ii) consolidated financial statements of the State is actively Parent and vigorously defending any such pending litigationits Subsidiaries for the Fiscal Quarter ended September 30, 2017, and (iii) no injunctive relief has been granted by any court the annual (or other audited) financial statements of competent jurisdiction as part of such litigation which impacts Parent and its Subsidiaries for the ability Fiscal Years ended 2014, 2015 and 2016 and all amendments thereto.
(o) The Administrative Agent and Lenders shall be satisfied with the capital structure of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;and its Subsidiaries.
(vip) All federal authorizations Administrative Agent shall have received evidence that the Existing Credit Agreements have been, or on the Closing Date are being, terminated and all Liens securing obligations under the Wetland Permit Existing Credit Agreements have been, or on the Closing Date are being, released.
(q) Administrative Agent shall have received, at least five Business Days prior to the Closing Date, all documentation and other information required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake Governmental Authorities under applicable “know your customer” and complete the Comprehensive Grading Work as shown on Exhibit A-11anti-1 money laundering rules and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreementregulations, including the Rental Agreement and all documents related to PATRIOT Act, that has been reasonably requested by the Project BondsAdministrative Agent or the Lenders.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 1 contract
Sources: Loan and Security Agreement (Par Pacific Holdings, Inc.)
Conditions Precedent to Closing. (a) The Company’s obligation to consummate This Agreement shall become effective on the Closing is expressly conditioned upon the satisfaction or waiver date that each of the followingfollowing conditions shall have been satisfied or waived by the Lender:
(i) All representations receipt by the Lender of:
(A) executed counterparts of this Agreement, sufficient in number for distribution to the Lender and warranties the Borrower;
(B) Notice of Account Designation, substantially in the form of Exhibit F hereto, appropriately completed and signed by a Responsible Officer of the Public Parties set forth Borrower;
(C) if requested by the Lender, a promissory note as contemplated in Section 5.1 above Paragraph 1(d) above, substantially in the form of Exhibit D hereto, appropriately completed and signed by a Responsible Officer of the Borrower;
(D) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers as the Lender 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
(E) such documents and certifications as the Lender 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 each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so is not reasonably likely to have a Material Adverse Effect;
(F) a favorable opinion of counsel to the Borrower, addressed to the Lender;
(G) a certificate of a Responsible Officer either (1) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by and the validity against the Borrower of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be true in full force and correct effect, or (2) stating that no such consents, licenses or approvals are so required; Lowe’s Companies, Inc.
(H) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in clauses (ii) and (iii) of the section below entitled “Conditions Precedent to Borrowing, Conversion or Continuation” have been satisfied as of the Closing Date as if made (regardless of whether any funding occurs on the Closing Date); and (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;
(ii1) No event of default beyond any applicable notice and cure periods on upon the part reasonable request of the Public Parties has occurred and is continuing hereunder as of Lender made at least ten days prior to the Closing Date;
(iii) The Title Company is irrevocably committed to issue , the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties Borrower shall have provided written confirmation to the Company that all funds allocated by Lender the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available documentation and other information so requested in all respects as of the connection with applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, “know your customer” and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially anti-money-laundering rules and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreementregulations, including the Rental Agreement and all documents related Act, in each case at least five days prior to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(2) at least five days prior to the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification; and
(J) such other assurances, certificates, documents, consents or opinions as the Lender may reasonably require.
(ii) The Company shall have paid Any and all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to before the Closing; andClosing Date shall have been paid.
(iii) The Company Unless waived by the Lender, the Borrower shall have paid all fees, charges and disbursements of counsel to the Lender (directly to such counsel if requested by the Lender) to the extent invoiced prior to or on the Closing Date or reflected on a settlement statement or funds flow statement approved by the Borrower, 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 Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project BondsLender).
Appears in 1 contract
Conditions Precedent to Closing. (a) The Company’s Buyer's obligation to consummate Close under this Agreement is subject to the Closing is expressly conditioned upon the satisfaction or waiver fulfillment of each of the following:following conditions, subject, however to the provisions of Section 8(c):
(i) All The representations and warranties of the Public Parties set forth in Section 5.1 above Seller contained herein shall be true materially true, accurate and correct as of the Closing Date, it being understood that rent rolls, delinquency reports and financial statements, bearing a specific date are accurate as of such date only;
(ii) Seller shall have delivered all the documents and other items required by Section 9, and shall have performed in all material respects all other covenants, undertakings and obligations, and complied in all material respects with all conditions required by this Agreement to be performed or complied with by the Seller at or prior to the Closing; and
(iii) Title to the Property shall be as provided in this Agreement. Buyer acknowledges and agrees that its obligation to perform under this Agreement is not contingent upon Buyer's ability to obtain, inter alia, any (A) governmental or quasi-governmental approval of changes or modifications in use, zoning or subdivision, (B) modification of any existing land use restriction, (C) site plan approval or building permit, (D) consents to assignments of any Service Contracts, management agreements or other agreements which Buyer desires, or (E) financing.
(b) Seller's obligation under this Agreement to sell Seller's Partnership Interests to Buyer, is subject to the fulfillment of each of the following conditions, subject, however to the provisions of Section 8(c):
(i) the representations and warranties of Buyer contained herein shall be materially true, accurate and correct as of the Closing Date as if made on except to the Closing Dateextent they relate only to an earlier date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties Buyer shall have delivered any the Purchase Price and other funds required hereunder and all the documents reasonably requested to be executed by the Title Company Buyer set forth in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties Section 10, and shall have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available performed in all material respects as of the applicable Closing Dateall other covenants, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDAundertakings and obligations, and rented to the Company, (B) would have a complied in all material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that respects with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit all conditions required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on performed or complied with by Buyer at or prior to the Closing; and.
(iii) The Company and on or prior to Closing Date, (A) Buyer shall not have applied for or consented to the Public Parties appointment of a receiver, trustee or liquidator for itself or any of its assets unless the same shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related been discharged prior to the Project Bonds.Closing Date, and no such receiver, liquidator or trustee shall have otherwise been appointed, unless same shall have been discharged prior to the Closing Date;
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pennsylvania Real Estate Investment Trust)
Conditions Precedent to Closing. (a) The Company’s obligation All obligations hereunder of Seller are subject, at the sole option of Seller, to consummate the fulfillment prior to or at the Closing is expressly conditioned upon the satisfaction or waiver of each and every one of the followingfollowing conditions:
(i) All of the agreements and covenants contained in this Agreement that are to be complied with, satisfied and performed by ▇▇▇▇▇ on or before the Closing Date shall have been complied with, satisfied and performed.
(ii) All of the representations and warranties of the Public Parties set forth made by Buyer in Section 5.1 above this Agreement shall be true and correct in all material respects both on and as of the Closing Date as if made date of this Agreement and on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;.
(iii) The Title Company is irrevocably committed Buyer shall deliver at the Closing to issue Seller all of the Title Policy payments and the Public Parties have delivered any documents reasonably requested by the Title Company referred to in order for the Title Company to issue the Title Policy in accordance with the terms Subsection 8(a) hereof;.
(iv) The Public Parties have provided written confirmation No suit, action, or proceeding shall be instituted before any court or governmental agency or other body to restrain or prevent the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Datetransaction contemplated hereunder, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation nor shall any governmental investigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including Agreement have been commenced and not resolved by the Rental Agreement and all documents related to the Project BondsClosing Date.
(b) The Public Parties’ obligation All obligations of Buyer under this Agreement are subject, at the sole option of Buyer, to consummate the fulfillment prior to or at the Closing is expressly conditioned upon the satisfaction or waiver of each and every one of the followingfollowing conditions:
(i) No event of default beyond any applicable notice and cure periods on the part All of the Company has occurred agreements and is continuing covenants contained in this Agreement that are to be complied with, satisfied and performed by Seller on or before the Closing Date shall have been complied with, satisfied and performed.
(ii) All of the representations and warranties made by Seller in this Agreement or in any other agreement, certificate, financial statement, instrument or document furnished or to be furnished to Buyer shall be true and correct in all material respects both on and as of the date of this Agreement and on and as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company business and properties of Seller shall not have been materially adversely affected in any way, whether by fire, casualty, act of God or otherwise.
(iv) Seller shall deliver at the Public Parties Closing to Buyer all of the documents referred to in Subsection 8(b) hereof.
(v) No suit, action, or proceeding shall have agreed upon be instituted before any court or governmental agency or other body to restrain or prevent the form of all customary documentstransaction contemplated hereunder, including without limitation the Definitive Documents, necessary and reasonable for the consummation of nor shall any governmental investigation relating to the transactions contemplated by this AgreementAgreement have been commenced and not resolved by the Closing Date.
(vi) A court order, including acceptable to the Rental Buyer in its sole discretion, issued by the United States Bankruptcy Court for the Western District of Washington approving this Agreement and all documents related the action contemplated herein, in Chapter 11 Case Number 12-10808-MLB.
(vii) Receipt of a copy of a Confirmed Plan of Reorganization, acceptable to the Project BondsBuyer, issued by the United States Bankruptcy Court for the Western District of Washington in Chapter 11 Case Number 12-10808-MLB.
Appears in 1 contract
Sources: Asset Purchase Agreement
Conditions Precedent to Closing. (a) The Company’s obligation Lenders shall not be required to consummate fund any requested Revolving Loan, issue any Letter of Credit, or otherwise extend credit to the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) All representations and warranties of the Public Parties set forth in Section 5.1 above shall be true and correct as of the Closing Date as if made Borrowers hereunder on the Closing Date, until the following conditions have been satisfied (or waived):
(a) Revolving Notes shall have been executed by the Borrowers and delivered to each Lender that requests issuance of a Revolving Note at least two (2) Business Days prior to the Closing Date. This Agreement, the Intercreditor Agreement, the Security Agreement and any Mortgages, Mortgage amendments and reaffirmation agreements required on the Closing Date shall have been duly executed and delivered to the Agent by each of the Loan Parties signatory thereto;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iiib) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties Agent shall have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all received an executed assignment of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened Mortgage from Existing Term Agent with respect to the Project Site which New York Real Property in favor of Agent;
(Ac) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, The Agent shall have received (Bi) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that customary UCC lien searches with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigationLoan Parties, (ii) all UCC-1 financing statements in favor of Agent with respect to the State is actively and vigorously defending any such pending litigationLoan Parties, and (iii) no injunctive relief has been granted subject to the Intercreditor Agreement, all certificated Equity Interests and promissory notes that constitute Collateral and are required to be delivered on the Closing Date accompanied by any court undated stock powers or other instruments of competent jurisdiction as part of such litigation which impacts the ability of the Company transfer executed in blank, in form and substance acceptable to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigationAgent;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(viid) The Company and the Public Parties Agent shall have agreed upon received evidence, in form and substance reasonably satisfactory to the form of all customary documentsAgent, including without limitation the Definitive Documents, necessary and reasonable for the consummation of that the transactions contemplated by this Agreementthe Term Loan Documents have been consummated, including together with an executed copy of the Rental Term Loan Credit Agreement and all documents related the other material Term Loan Documents, in form and substance acceptable to the Project Bonds.Agent;
(be) The Public Parties’ obligation Aircraft Security Agreement shall have been duly executed and delivered to consummate the Closing is expressly conditioned upon the satisfaction or waiver Agent by each of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and the Public Loan Parties shall have agreed upon the signatory thereto in proper form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.recording;
Appears in 1 contract
Sources: Credit Agreement (Astronics Corp)
Conditions Precedent to Closing. Lenders shall not be obligated to make any Loan, or to take, fulfill, or perform any other action under this Agreement, until the following conditions have been satisfied to Agent’s reasonable satisfaction or waived in writing by Agent:
4.1.1 Agent shall have received:
(a) The Companyoriginals of the documents set forth on Schedule 1.1h (Schedule of Documents), each duly executed by the appropriate parties, together with such other assurances, certificates, documents or consents related to the foregoing as Agent and/or Lenders reasonably may require, all in form and substance satisfactory to Agent and Lenders;
(b) such documentation as Agent may reasonably require to establish the due organization, valid existence and good standing of Borrower, its qualification to engage in business in each material jurisdiction in which it is engaged in business or required to be so qualified, its authority to execute, deliver and perform the Loan Documents to which it is a party, the identity, authority and capacity of each Authorized Signatory thereof authorized to act on its behalf, including certified copies of articles of organization and amendments thereto, bylaws and operating agreements and amendments thereto, certificates of good standing and/or qualification to engage in business, tax clearance certificates, certificates of corporate resolutions, incumbency certificates, certificates of Authorized Signatory, and the like;
(c) a list of all of Borrower’s obligation Material Contracts and a copy of such Material Contracts requested by Agent;
(d) a copy of all insurance certificates or other evidence of insurance for the Collateral;
(e) originals of favorable written opinions, dated as of the date hereof, of independent and internal counsel to the Borrower, addressed to Agent and Lenders (and their respective participants and assigns) and otherwise in form and substance satisfactory to Agent as to such matters as Agent shall determine;
(f) copies of all consents and authorizations of, permits from or filings with, any Governmental Authority or other Person required in connection with the execution, delivery, performance or enforceability of the Loan Documents or any provision thereof and no material changes in governmental regulations affecting the Borrower, Agent or the Lenders shall have occurred;
(g) (i) a certified lien search for the State of Delaware and the State of California with respect to the Borrower and each of its Subsidiaries, (ii) an International Registry search with respect to each applicable item of Equipment; (iii) an FAA search with respect to each applicable item of Equipment, (iv) a Federal tax lien search with respect to the Borrower and each of its Subsidiaries, and any other searches as may be required by Agent; and
(h) the “chattel paper” original of each Lease, which thereafter until the Termination Date shall be held by Agent or McAfee & ▇▇▇▇ as Agent’s designee or such other party as Agent may designate; provided Agent shall not be liable in the event of any damage, loss or destruction of any of such documents or instruments.
4.1.2 All of the financing statements and other documentation described in Section 3.1.7 shall have been filed with the appropriate Governmental Agencies, and Agent shall hold a first priority perfected Lien in the Collateral, for the ratable benefit of Lenders, subject only to Permitted Liens.
4.1.3 With respect to all Equipment, and subject to Section 6.23, the following statements shall be true, and Agent shall have received evidence reasonably satisfactory to it (including, with respect to each item of Equipment which is eligible for registration with the International Registry, a printout of the “priority search certificate” from the International Registry showing the Equipment Owner’s ownership interest with respect to such Equipment under a contract of sale) with respect to each item of Equipment and any related Lease included in the Borrowing Base to the effect that:
(a) the Borrower is in compliance with the applicable requirements of the Mortgage and Applicable Law;
(b) the applicable Equipment Owner has good title under Applicable Law to such item of Equipment, free and clear of Liens other than (i) Permitted Liens and (ii) the Lien of Agent;
(c) the Borrower has completed all registrations and filings required by any Aviation Authority in such jurisdiction and Agent shall hold a first priority Lien on each item of Equipment under Applicable Law (or with respect to Assets for which a pre-filing has been made, Agent shall be the beneficiary of a second priority Lien on such Equipment, and documentation sufficient to terminate any first priority lien on such Equipment shall have been delivered to Agent or to an escrow with such documentation to be filed upon payoff of such lien through Revolving Loan proceeds) and has provided, or is in a position to provide, all opinions of independent counsel as required by Agent; and
(d) Agent shall have received evidence reasonably satisfactory to it (including, with respect to each Cape Town Eligible Lease, a printout of the “priority search certificate” (as defined in the Regulations for the International Registry) from the International Registry relating to the Lessor’s interest in and International Interest with respect to such item of Equipment under such Lease and including, with respect to all Leases that are not Cape Town Eligible, an original, favorable written opinion of independent counsel addressed to Agent and Lenders (and their respective participants and assigns) with respect to Agent’s Lien on such item of Equipment;
4.1.4 Payment by Borrower to Agent of all fees, costs, and expenses of closing (including reasonable fees of legal counsel to Agent presented as of the Closing Date);
4.1.5 No action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before any court, Governmental Authority or legislative body to enjoin, restrain or prohibit, or to obtain damages in respect of, or which is related to or arises out of, this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby or thereby and which, in any Lender’s sole judgment, would make it inadvisable to consummate the Closing is expressly conditioned upon the satisfaction transactions contemplated by this Agreement or waiver any other Loan Document;
4.1.6 Payment by Borrower to each Lender of any of the following:fees due to each Lender;
(i) 4.1.7 No circumstance or event shall have occurred, including but not limited to any litigation, actions, suits, proceedings or investigations pending as to Borrower, that constitutes a Material Adverse Effect as of the Closing Date;
4.1.8 All of the representations and warranties of the Public Parties set forth in Section 5.1 above Borrower under this Agreement shall be true and correct as of the Closing Date as if made on the Closing Date;
(ii) No event of default beyond any applicable notice 4.1.9 Borrower shall be in compliance with all the terms and cure periods on the part provisions of the Public Parties has Loan Documents, and no Default or Event of Default shall have occurred and is continuing hereunder be continuing;
4.1.10 Agent shall have completed its independent business and legal due diligence, including but not limited to financial, legal and insurance reviews, with results satisfactory to Agent;
4.1.11 Each Lender and Agent each shall have obtained satisfactory credit or other required internal approval(s) in connection with the transactions contemplated by this Agreement and the Loan Documents;
4.1.12 The Closing Date shall occur on or before February 28, 2019;
4.1.13 Borrower shall have established a non-interest bearing account with Agent;
4.1.14 The Excluded Subsidiaries shall have closed or concurrently close the Term Loan Facility;
4.1.15 All legal matters relating to the Loan Documents shall be satisfactory to Sheppard, Mullin, ▇▇▇▇▇▇▇ & Hampton LLP, legal counsel to MUFG Union Bank, N.A., in all of its capacities hereunder;
4.1.16 Agent shall have received a certificate, certified by an Authorized Signatory of Borrower, describing the terms of the Term Loan Facility; and
4.1.17 Agent shall have received a pro-forma Compliance Certificate and Borrowing Base Certificate based on financial information as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue , evidencing compliance with the Title Policy Borrowing Base and the Public Parties have delivered applicable covenants. If any documents reasonably requested by the Title Company in order for the Title Company other term of any Loan Document should conflict, or appear to issue the Title Policy in accordance conflict, with this Section 4.1, the terms hereof;
(iv) The Public Parties of this Section 4.1 shall control, and Borrower shall have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all no rights under this Agreement or any other Loan Document until each of the Public Partiesconditions of this Section 4.1 has been complied with to Agent’s and Lenders’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending satisfaction or threatened with respect to the Project Site which (A) has resulted specifically waived in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned writing by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project BondsLenders.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 1 contract
Conditions Precedent to Closing. (a) 8.1 The CompanySeller’s obligation conditions precedent The Seller shall not be obliged to consummate the perform its obligations at Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) All representations and warranties of the Public Parties as set forth in Section 5.1 above Clause 9.2 unless the following conditions precedent are satisfied (or waived by the Seller) not later than at Closing:
1. There shall not have been any material adverse changes in the assets, condition, or prospects of the Buyer since 31 December 2015;
2. The Buyer’s Representations and Warranties and any certificate or other writing delivered pursuant to this Agreement qualified as to materiality shall be true and correct in all respects, and those not so qualified shall be true and correct in all material respects, at and as of the Closing Date as if though made on and as of the Closing DateDate (except to the extent such representations and warranties speak as of an earlier date, in which case such representations and warranties shall be so true and correct as of such earlier date);
(ii) No event of default beyond any applicable notice 3. The other parties to the ROFR Agreement and cure periods Voting Agreement shall have consented to the Seller becoming a party to such agreements on the part terms contemplated in connection with the Seller’s acceptance of becoming a party to these;
4. No litigation, injunction, order or other similar legal proceeding shall have been instituted against Buyer, which litigation, injunction, order or proceeding is reasonably likely to restrain in any material adverse way or prohibit the consummation of the Public Parties has occurred transaction contemplated by this Agreement; and
5. The Buyer shall have performed and complied in all material respects with its obligations under this Agreement prior to and at Closing so that the transaction contemplated by this Agreement is continuing hereunder not in any material respect adversely affected. JKM/JKM/1037031 16 MAY 2016
8.2 The Buyer’s conditions precedent The Buyer shall not be obliged to perform its obligations at Closing as set forth in Clause 9.3 unless the following conditions precedent are satisfied (or waived by the Buyer) not later than at Closing:
1. There shall not have been any material adverse changes in the assets, condition, or prospects of the Business since the last statutory accounts date (for the statutory accounts accounting for the Business) or any material change in the ability of the Business to operate on a stand-alone basis after the Closing Date in accordance with the financial and business projections provided by the Seller to the Buyer;
2. The Seller’s Representations and Warranties and any certificate or other writing delivered pursuant to this Agreement qualified as to materiality shall be true and correct in all respects, and those not so qualified shall be true and correct in all material respects, at and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case such representations and warranties shall be so true and correct as of such earlier date);
3. The Seller shall have executed and delivered a counterpart signature page agreeing to become a party to the ROFR Agreement and Voting Agreement;
4. The Seller shall have executed and delivered the Adoption Agreement;
5. The Seller shall have executed and delivered the Observer Agreement;
6. Each director and officer of the Subsidiaries shall have delivered their written resignations effective as of the Closing Date;
7. The Seller shall have delisted the Seller’s capital stock from the Oslo Axxes (iiiOslo Stock Exchange) and terminated its registration under applicable Law;
8. The Title Company is irrevocably Seller shall have obtained and delivered to Buyer the Required Consents;
9. The Seller has documented that the transaction contemplated by this Agreement has been duly and finally approved by the shareholders of the Seller at an extraordinary general meeting (EGM) by equivalent action with the required majority;
10. The Seller has documented prior to or at the time of Signing that the majority shareholder of the Seller, Sorana A/S, has in writing committed to issue vote in favour of this Agreement in a general meeting of the Title Policy Seller to be held between Signing and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereofClosing;
(iv) The Public Parties 11. No litigation, injunction, order or other similar legal proceeding shall have provided written confirmation been instituted against Seller, which litigation, injunction, order or proceeding is reasonably likely to restrain in any material adverse way or prohibit the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all consummation of the Public Parties’ respective obligations hereunder remain available transaction contemplated by this Agreement; and JKM/JKM/1037031 17 MAY 2016
12. The Seller shall have performed and complied in all material respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their its obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to under this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documentsAgreement, including without limitation the Definitive Documentsobligations set forth in Clause 13.1, necessary prior to and reasonable at Closing so that the transaction contemplated by this Agreement is not in any material respect adversely affected.
8.3 The Parties shall use their best efforts and act in good faith to ensure that the conditions precedent set forth in Clauses 8.1 and 8.2 are satisfied not later than on 15 July 2016 or, failing to meet the said date, as soon as possible thereafter.
8.4 The Buyer shall expedite the filing of all required notifications to any competition authorities. To this end the Parties and their legal advisers shall work together and shall without undue delay share all information relevant for the consummation notification procedures, including any and all filings and correspondence with the competition authorities, unless the sharing of such information is contrary to applicable Law, in which case such information shall only be shared on an external counsel-to-counsel basis, to the extent legally permissible.
8.5 If any of the transactions conditions precedent set forth in Clauses 8.1 and/or 8.2 is not satisfied and is not capable of being satisfied as part of Closing (and such condition precedent is not waived by the Party who may waive the condition precedent) on 31 August 2016 at the latest, or on such other date as the Parties may subsequently agree upon, the Seller and/or the Buyer, as applicable (depending upon which of the Parties that may waive the condition precedent), may not later than on the tenth (10th) Business Day after that date terminate this Agreement with immediate effect by written notice to the other Party, failing which notice this Agreement shall be consummated as contemplated herein, unless prohibited by law. Notwithstanding the above, a Party may not rely on the failure of any condition precedent to be satisfied as grounds for terminating this Agreement if such failure is caused by such Party’s breach of its obligation to use its best efforts or to act in good faith to ensure that such condition precedent is satisfied.
8.6 In case of termination of this Agreement as set forth in Clause 8.5 neither of the Parties shall have any liability towards the other unless the reason why the condition(s) precedent was (were) not satisfied is a consequence of any of the Parties being in breach of any of its obligations under this Agreement, including a breach of any of its representations and warranties given in this Agreement. For clarity and the Rental Agreement and all documents related to avoidance of doubt, the Project Bonds.
(b) The Public Parties’ Seller’s obligation to consummate obtain and deliver the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds Required Consents as set forth herein, and all other fees and expenses out in Clause 8.2.8 is a commercially reasonable effort obligation as described in Clause 4.2.1. In case of the JDA as required any termination of this Agreement caused by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form a Party being in breach of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation any of the transactions contemplated by its obligations under this Agreement, including the Rental Agreement and all documents related other Party shall be entitled to exercise any remedy available according to this Agreement. JKM/JKM/1037031 18 MAY 2016
8.7 Each of the Parties undertakes as soon as reasonable practicable to disclose in writing to the Project Bondsother any circumstance or fact that will or is reasonably likely to prevent any of the conditions precedent from being satisfied upon becoming aware of such circumstance or fact. Moreover, each of the Parties undertakes to inform the other in writing as soon as reasonable practicable when such Party has become aware that a condition precedent has been satisfied.
Appears in 1 contract
Sources: Business Transfer Agreement
Conditions Precedent to Closing. Credit Facility Lenders shall not be obligated to make any Loan (including the issuance of any Letter of Credit), or to take, fulfill, or perform any other action under this Agreement, until the following conditions have been satisfied to their reasonable satisfaction or waived in writing by each such lender:
4.1.1 Administrative Agent shall have received:
(a) The Company’s obligation originals of the documents set forth on Schedule 4.1 (Schedule of Documents), each duly executed by the appropriate parties, together with such other assurances, certificates, documents or consents related to consummate the foregoing as Administrative Agent reasonably may require, all in form and substance satisfactory to Administrative Agent;
(b) such documentation as Administrative Agent may reasonably require to establish the due organization, valid existence and good standing of Borrower and each Leasing Subsidiary and, as to each, its qualification to engage in business in each material jurisdiction in which it is engaged in business or required to be so qualified, its authority to execute, deliver and perform the Loan Documents to which it is a party, the identity, authority and capacity of each Authorized Signatory thereof authorized to act on its behalf, including certified copies of articles of organization and amendments thereto, bylaws and operating agreements and amendments thereto, certificates of good standing and/or qualification to engage in business, tax clearance certificates, certificates of corporate resolutions, incumbency certificates, certificates of Authorized Signatory, and the like;
(c) (i) a list of all current insurance of any nature maintained by Borrower, as well as a summary of the terms of such insurance, including insurance for Engines and Equipment leased pursuant to an Eligible Lease and (ii) a copy of all insurance certificates or other evidence of insurance for the Collateral, as requested by Agent;
(d) originals of favorable written opinions, dated as of the date hereof, of independent and internal counsel to the Borrower, Leasing Subsidiary, and the Owner Trustee, in each case acceptable to Administrative Agent, addressed to Agents and Credit Facility Lenders (and their respective participants and assigns) and otherwise in form and substance satisfactory to Administrative Agent as to such matters as Administrative Agent shall determine;
(e) a Compliance Certificate dated as of the Closing is expressly conditioned upon the satisfaction or waiver Date;
(f) a pro forma Borrowing Base Certificate as of the following:Closing Date
(g) copies of all consents and authorizations of, permits from or filings with, any Governmental Authority or other Person required in connection with the execution, delivery, performance or enforceability of the Loan Documents or any provision thereof and no material changes in governmental regulations affecting the Borrower, Agents or the Lenders shall have occurred;
(i) a certified lien search for the State of Delaware with respect to the Borrower and each of its Subsidiaries, and (ii) a Federal tax lien search with respect to the Borrower and each of its Subsidiaries, and any other searches as may be required by Administrative Agent or Security Agent; and
(i) to the extent any Specified Asset is proposed to be included in the Borrowing Base as of the Closing Date, the documents required under clause (a) and/or (b), as applicable, of the definition of “Eligible Specified Asset” with respect to such Specified Asset.
4.1.2 All of the financing statements and other documentation described in the Security Agreement shall have been filed with the appropriate Governmental Authorities, and, subject to the first sentence of Section 4.3, Security Agent shall hold a first priority perfected Lien in the Collateral, for the ratable benefit of Credit Facility Lenders, subject only to Permitted Liens.
4.1.3 The following statements shall be true, and Administrative Agent shall have received evidence reasonably satisfactory to it (including, with respect to each Registerable Asset which is eligible for registration with the International Registry, a printout of the “priority search certificate” from the International Registry or other valid evidence of such ownership reasonably acceptable to the Security Agent showing the Engine Owners’ or Equipment Owners’ ownership interest with respect to such Registerable Asset under a contract of sale) with respect to each Registerable Asset and any related Lease included in the Borrowing Base to the effect that:
(a) the applicable Engine Owner or Equipment Owner owns such Registerable Asset and the related Lease, free and clear of Liens other than (i) Permitted Liens and (ii) the Lien, the International Interests and assignment of International Interests created by the Mortgage and Security Agreement; and
(b) with respect to each Registerable Asset, the Borrower is in compliance with the applicable requirements of the Security Agreement and the Mortgage and Security Agreement or the Owner Trustee Mortgage and Security Agreement, as applicable.
4.1.4 Borrower shall have paid to Administrative Agent all fees, costs, and expenses of closing (including reasonable fees of legal counsel to Administrative Agent presented as of the Closing Date).
4.1.5 Borrower shall have paid to Administrative Agent, for the ratable benefit of the Lenders, the upfront fees payable on or prior to the Closing Date as heretofore agreed upon by separate letter agreement between Borrower and Administrative Agent.
4.1.6 There shall be no action, proceeding, investigation, regulation or legislation which shall have been instituted, threatened or proposed before any court, Governmental Authority or legislative body to enjoin, restrain or prohibit, or to obtain damages in respect of, or which is related to or arises out of, this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby or thereby and which, in any Lender’s sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Document.
4.1.7 Administrative Agent shall have completed its independent business and legal due diligence, including, but not limited to financial, legal and insurance reviews, with results satisfactory to Administrative Agent.
4.1.8 All of the representations and warranties of the Public Parties set forth in Section 5.1 above Borrower under this Agreement shall be true and correct as of the Closing Date.
4.1.9 Credit Facility Lenders, Administrative Agent, and Security Agent each shall have obtained satisfactory credit or other required internal approval(s) in connection with the transactions contemplated by this Agreement and the Loan Documents.
4.1.10 The Closing Date shall occur on or before June 30, 2019.
4.1.11 No circumstance or event shall have occurred, including, but not limited to, any litigation, actions, suits, proceedings or investigations pending as if made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder to Borrower, that constitutes a Material Adverse Effect as of the Closing Date;.
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company 4.1.12 Borrower shall be in order for the Title Company to issue the Title Policy in accordance compliance with all the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all and provisions of the Public Parties’ respective obligations hereunder remain available in all respects as Loan Documents, and no Default or Event of Default shall have occurred and be continuing. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 4.1, the terms of this Section 4.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the applicable Closing Date, conditions of this Section 4.1 has been complied with to the extent not previously expended;
(v) There is no litigation pending Administrative Agent’s and Lenders’ satisfaction or threatened with respect to the Project Site which (A) has resulted specifically waived in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned writing by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project BondsLenders.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 1 contract
Conditions Precedent to Closing. (a) Conditions to the Company's Obligation. The Company’s 's obligation to consummate -------------------------------------- issue the Shares hereunder is subject to the performance by each Purchaser at or prior to the Closing is expressly conditioned upon hereof of all of the agreements of each such Purchaser contemplated to be performed hereunder at or prior to the Closing and to the satisfaction or waiver of the following:
(i) All further condition that the representations and warranties of the Public Parties set forth Purchasers contained in Section 5.1 above 4 hereof shall be true and correct as of the Closing Date Closing, or to the waiver of such performance or satisfaction.
(b) Conditions to Each Purchaser's Obligations. The obligations of each ------------------------------------------ Purchaser to purchase the Shares and to execute and deliver the amendment to the Shareholders' Agreement contemplated by this Agreement are subject to satisfaction of the following conditions:
(i) the Purchasers shall have received opinions, addressed to them and dated as if made on of the Closing DateClosing, from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. Newborn, II, Esq., General Counsel of the Company, addressing the matters set forth in Exhibits D-1 and D-2 attached hereto;
(ii) No event of default beyond any applicable notice (A) the representations and cure periods on the part warranties of the Public Parties has occurred Company contained in Section 3 shall be true and is continuing hereunder correct in all respects, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on and as of the Closing Datewith the same effect as though such representations and warranties had been made as of the Closing and (B) there shall have been no Material Adverse Change;
(iii) The Title the Company is irrevocably committed shall have complied in all material respects with all agreements hereunder required to issue be performed by it at or prior to the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereofClosing;
(iv) The Public Parties the Certificate of Designations shall have provided written confirmation to been filed with the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all Secretary of State of the Public Parties’ respective obligations hereunder remain available in all respects as State of the applicable Closing Date, to the extent not previously expendedDelaware;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, By-laws and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition Shareholders' Agreement each shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions amended as contemplated by this Agreement, including the Rental Agreement and by all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods necessary corporate action on the part of the Company has occurred and is continuing as of the Closing Date; andShareholders;
(iivi) The Company no action, suit, or proceeding shall have paid all fees and expenses be pending or threatened before any court or quasi-judicial or administrative agency of the Project Bonds as set forth hereinany federal, and all other fees and expenses state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation any of the transactions contemplated by any Operative Document or (B) affect adversely the Company's right to own its assets and to operate its business; and no such injunction, judgment, order, decree, ruling or charge shall be in effect;
(vii) the Company shall have delivered to the Purchasers a certificate, dated as of the Closing, signed on behalf of the Company by the Chairman of the Board of Directors and Chief Executive Officer of the Company and by the President and Chief Operating Officer of the Company to the effect that, to their knowledge, (A) the representations and warranties of the Company contained in Section 3 are true and correct in all respects, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse effect, on and as of the Closing with the same effect as though such representations and warranties had been made as of the Closing and (B) each of the other conditions specified in (ii)-(vi) above and (xiii)-(xiv) below has been satisfied;
(viii) the Purchasers shall have received a certificate, dated as of the Closing, signed by the Secretary or an Assistant Secretary of the Company and certifying that attached thereto is a true, correct and complete copy of (A) the Company's By-laws and (B) resolutions duly adopted by the Executive Committee of the Board of Directors of the Company authorizing the execution and delivery of the Operative Documents;
(ix) the Purchasers shall have received certificates (or copies thereof) dated as of a recent date from the Secretary of State of the State of Delaware to the effect that the Company is duly incorporated and in good standing in such state, stating that the Company owes no franchise taxes in such state and listing all documents of the Company on file with said Secretary of State;
(x) the Purchasers shall have received a copy of the Company's Certificate of Incorporation, including all amendments thereto, certified as of a recent date by the Secretary of State of the State of Delaware;
(xi) the Purchasers shall have received evidence, reasonably satisfactory to the Purchasers, of the authority and incumbency of the persons acting on behalf of the Company in connection with the execution of any document delivered in connection with this Agreement;
(xii) the Purchasers shall have received the Audited Financial Statements and the Unaudited Financial Statements;
(A) the amendment to the Shareholders' Agreement contemplated by this Agreement and, including to the Rental Agreement extent necessary, all of the transactions contemplated thereby shall have been approved by the Requisite Securityholders and (B) each other Operative Document and all documents related of the transactions contemplated thereby shall have been approved by the requisite number of holders of shares of capital stock or other equity securities of the Company; and
(xiv) the existing securityholders of the Company shall have waived any preemptive rights such securityholders may have to acquire Series Y Preferred Stock to the Project Bondsextent necessary to permit the Purchasers collectively to purchase at least $32,500,013 of Shares.
Appears in 1 contract
Conditions Precedent to Closing. 5.1 Condition Precedent to the Obligations of the Parties
(a) The Company’s obligation It shall be condition precedent to the obligations of the Parties to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the followingtransactions contemplated by this Agreement that:
(i) All no Government Agency shall have enacted, issued, promulgated, enforced or entered any law, rule, regulation, order, decree or injunction that is in effect on the Closing Date and has the effect of making the joint venture establishing EAP illegal or otherwise prohibiting consummation of the transactions contemplated hereby; and
(ii) the shareholders of Gondwana have approved GAP's participation in EAP on or before the End Date.
(b) It shall be condition precedent to the obligations of EAP and e▇▇▇▇▇▇.▇▇▇ to consummate the transactions contemplated by this Agreement that each of the representations and warranties of the Public Parties set forth GAP contained in Section 5.1 above this Agreement shall be true and correct in all material respects when made and on and as of the Closing Date as if made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder date (other than litigation relating to development or permitting representations and warranties that address matters only as of the Projecta certain date, which shall be true and correct as of such certain date), except as contemplated or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to permitted by this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigationAgreement, and (iii) no injunctive relief has been granted e▇▇▇▇▇▇.▇▇▇ shall have received a certificate executed by any court a director and a company secretary of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect GAP to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 dayseffect; and
(viic) The Company It shall be condition precedent to the obligations of EAP and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of GAP to consummate the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver that each of the following:
(i) No event representations and warranties of default beyond any applicable notice e▇▇▇▇▇▇.▇▇▇ contained in this Agreement shall be true and cure periods correct in all material respects on the part of the Company has occurred and is continuing as of the Closing Date; and
Date as if made on and as of such date (ii) The Company other than representations and warranties that address matters only as of a certain date, which shall have paid all fees be true and expenses correct as of the Project Bonds such certain date), except as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on contemplated or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated permitted by this Agreement, including and GAP shall have received a certificate of the Rental President and Chief Financial Officer of e▇▇▇▇▇▇.▇▇▇ to such effect.
5.2 Non-fulfilment of Conditions If (a) any of the condition precedent in Section 5.1(a)(ii) is not fulfilled (or has not been waived under Section 5.3) on or before the End Date, or (b) the Loan is not advanced to EAP for whatever reason; or (c) the portion of the License Fee payable on the Closing Date is not paid on or before 5pm (Perth time) on the Closing Date for whatever reason, then this Agreement, other than Articles 1 (Definitions and Interpretation), 3 (Confidentiality), 5 (Conditions Precedent), 12 (Representations and Warranties), 14.3 - 14.17 (Miscellaneous Provisions), automatically terminates on the End Date or on the Closing Date (as applicable). For the avoidance of doubt, if this Agreement is terminated pursuant to this Section 5.2, no person shall have any liability to any other person arising out of or in connection with this Agreement or the Loan Agreement, except in accordance with Sections 1, 3, 12 and all documents related to the Project Bonds14.3 - 14.17.
Appears in 1 contract
Sources: Joint Venture and Shareholders' Agreement (Entrade Inc)
Conditions Precedent to Closing. (a) The Company’s obligation to consummate Closing on the Closing purchase of the Property hereunder shall be and hereby is expressly conditioned upon the satisfaction or waiver of each of the following:following conditions (collectively, the “Conditions Precedent”):
(i) All 6.1 Seller shall have performed all of the obligations required to be performed by Seller under this Agreement, as and when required by this Agreement, in all material respects;
6.2 The representations and warranties of the Public Parties Seller as set forth in Section 5.1 this Agreement made by Seller shall be, in all material respects, true, correct and complete;
6.3 Seller shall have performed each and every agreement to be performed by Seller pursuant to this Agreement;
6.4 As of the Closing, the Title Company shall have issued or shall have committed to issue, upon the sole condition of the payment of its regularly scheduled premium, the Purchaser’s title insurance policy in the form required under this Agreement;
6.5 As of the Closing, there shall have occurred no casualty of a material nature to the Property (“material”, for this purpose being defined as costing in excess of $100,000 to repair) or condemnation or threat of condemnation by any applicable governmental authority affecting all or any part of the Property; and
6.6 If the Property is subject to a declaration of covenants, conditions and restrictions, condominium declaration or similar instrument (“CCRs”) governing or affecting the use, operation, maintenance, management or improvement of the Property, at the Closing, or if one or more easements are required to provide access to a public way over the land of others (“Easements”), Seller shall deliver to Purchaser (i) estoppel certificates, in form and substance reasonably satisfactory to Purchaser, from the declarant, Association (as hereinafter defined), committee, agent or other person or entity having governing or approval rights under the CCRs and the party burdened by any Easement, and (ii) a recordable assignment, in form and substance satisfactory to Purchaser, assigning any and all developer, declarant or other related rights or interests of Seller (or any affiliate of Seller) in or under the CCRs, if Seller (or such affiliate) holds such rights or interests and an assignment of the Easement or including same in the legal description of the deed all of which shall include any required consents to this transaction. If any of the Conditions Precedent listed above shall have not been satisfied on or before the Closing Date, this Agreement may be true and correct as of canceled by Purchaser, at Purchaser’s option, by written notice from Purchaser to Seller given on or before the Closing Date as and Purchaser shall receive a refund of the ▇▇▇▇▇▇▇ Money or Purchaser may extend the Closing Date for a reasonable period for Seller to attempt to satisfy the foregoing conditions precedent and, if made Seller again fails to satisfy the foregoing conditions precedent during such extended period, Purchaser shall again have the rights under this sentence. Upon such cancellation, this Agreement shall terminate except for obligations which expressly survive the termination or cancellation of this Agreement, and Purchaser shall receive a refund of the ▇▇▇▇▇▇▇ Money and neither party shall have any obligations to the other thereafter. Purchaser shall have the right to unilaterally waive any Conditions Precedent by written notice to Seller. At all times prior to Closing Seller shall:
(a) Refrain from transferring any of the Property or creating on the Closing Date;
(ii) No event of default beyond Property any applicable notice and cure periods on easements, liens, mortgages, encumbrances or other interests which would affect the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed Property or Seller’s ability to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance comply with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.;
(b) The Public Parties’ obligation to consummate Refrain from entering into any contracts or other commitments regarding the Property, other than in the ordinary and usual course of business, which may be cancelled at Closing is expressly conditioned upon without penalty, and which shall be cancelled by Seller at Closing, without the satisfaction or waiver prior written consent of the following:Purchaser;
(ic) No event Keep in effect Seller’s existing policies of default beyond any applicable notice and cure periods insurance insuring the Property;
(d) Refrain from storing, treating, or disposing on the part of the Company has occurred and is continuing Property any Hazardous or Toxic Substance, as of the Closing Date; and
(ii) defined hereafter. The Company shall have paid all fees and expenses of the Project Bonds term “Hazardous or Toxic Substances,” as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by used in this Agreement, including means any substance the Rental Agreement generation, storage, treatment disposal, or transportation of which is prohibited or regulated by any law or governmental regulation having as its object the protection of public health, natural resources, or the environment, including, by way of illustration only, the following: the Resource Conservation and Recovery Act; the Toxic Substances Control Act; the Clean Air Act; the Federal Water Pollution Control Act; the Comprehensive Environmental Response, Compensation, and Liability Act of 1980; the Clean Water Act and all documents related to the Project Bonds.applicable State of Michigan environmental acts (collectively, “Environmental Laws”);
Appears in 1 contract
Conditions Precedent to Closing. (a) The CompanyPurchaser’s obligation under this Agreement to consummate purchase the Premises (other than the Parking Spaces) on the Closing Date is expressly conditioned upon subject to the satisfaction or waiver fulfillment of each of the following:following conditions, subject, however, to the provisions of Section 9(c):
(i) All The representations and warranties of the Public Parties set forth in Section 5.1 above Seller contained herein shall be true true, accurate and correct in all material respects as of the Closing Date as if made on except to the Closing Dateextent they relate only to an earlier date;
(ii) No event Seller shall be ready, willing and able to deliver title to the Premises (other than the Parking Spaces, which will be transferred to Purchaser in accordance with Section 13(a)) in accordance with the terms and conditions of default beyond any applicable notice this Agreement; and
(iii) Seller shall have delivered all the documents and cure periods on other items required pursuant to Section 10, and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by the part Seller at or prior to the Closing.
(b) Seller’s obligation under this Agreement to sell the Premises (other than the Parking Spaces, which will be sold and transferred to Purchaser in accordance with Section 13(a)) to Purchaser is subject to the fulfillment of each of the Public Parties has occurred following conditions, subject, however to the provisions of Section 9(c):
(i) The representations and is continuing hereunder warranties of Purchaser contained herein shall be true, accurate and correct in all material respects as of the Closing Date, except to the extent that they relate to an earlier date;
(ii) Purchaser shall have delivered the funds required hereunder and all the documents to be executed by Purchaser set forth in Section 11 and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by Purchaser at or prior to the Closing;
(iii) The Title Company All consents and approvals of governmental authorities and parties to agreements to which Purchaser is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested a party or by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company which Purchaser’s assets are bound that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened are required with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement shall have been obtained and all documents related copies thereof shall have been delivered to Seller at or prior to the Project Bonds.Closing;
(biv) The Public Parties’ obligation On or prior to consummate the Closing is expressly conditioned upon Date, (A) Purchaser shall not have applied for or consented to the satisfaction appointment of a receiver, trustee or waiver liquidator for itself or any of its assets unless the same shall have been discharged prior to the Closing Date, and no such receiver, liquidator or trustee shall have otherwise been appointed, unless same shall have been discharged prior to the Closing Date, (B) Purchaser shall not have admitted in writing an inability to pay its debts as they mature, (C) Purchaser shall not have made a general assignment for the benefit of creditors, (D) Purchaser shall not have been adjudicated a bankrupt or insolvent, or had a petition for reorganization granted with respect to Purchaser, (E) Purchaser shall not have filed a voluntary petition seeking reorganization or an arrangement with creditors or taken advantage of any bankruptcy, reorganization, insolvency, readjustment or debt, dissolution or liquidation law or statute, or filed an answer admitting the material allegations of a petition filed against it in any proceedings under any such law, or had any petition filed against it in any proceeding under any of the following:
(i) No event of default beyond any applicable notice and cure periods on foregoing laws unless the part of the Company has occurred and is continuing as of same shall have been dismissed, canceled or terminated prior to the Closing Date; and
(iiv) The Company Purchaser shall have paid all fees delivered the funds required under the Sale-Purchase Agreement also dated as of December 20, 2007 between the Seller and expenses the Purchaser regarding the sale of the Project Bonds as set forth hereinreal properties recorded at page 261 of volume 1295 of Río Piedras Norte, property number 35,972 and all other fees and expenses of the JDA as required by Section 3.6(c) hereof documents to be paid on or prior to executed by the Closing; andPurchaser under said Sale-Purchase Agreement.
(iiic) The Company and In the Public Parties event that any condition contained in Section 9(a) or (b) is not satisfied, the party entitled to the satisfaction of such condition as a condition to its obligation to close title hereunder shall have agreed upon as its sole remedy hereunder the form of all customary documents, including without limitation right to elect to (i) waive such unsatisfied condition whereupon title shall close as provided in this Agreement or (ii) terminate this Agreement. In the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by event such party elects to terminate this Agreement, including this Agreement shall be terminated and neither party shall have any further rights, obligations or liabilities hereunder, except for the Rental Surviving Obligations, and except that if Purchaser terminates this Agreement because of a condition contained in Section 9(a) is not satisfied, then Purchaser shall be entitled to a return of the Downpayment subject to Section 24(d) and all documents related provided Purchaser is not otherwise in default hereunder. Nothing contained in this Section 9(c) shall be construed so as to bestow any right of termination upon a party for the failure of a condition to be satisfied unless such party is expressly entitled to the Project Bondssatisfaction of such condition as provided in Section 9(a) or (b).
Appears in 1 contract
Conditions Precedent to Closing. 10.1 The obligations of RMC under this Agreement to convey the Property and to perform the other covenants and obligations to be performed by RMC on or before the Closing Date shall be subject to the following conditions (all or any of which may be waived, in whole or in part, by RMC):
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) All representations and warranties of the Public Parties set forth in Section 5.1 above made by ▇▇▇▇-▇▇▇▇ herein shall be true and correct in all material respects with the same force and effect as of the Closing Date as if though such representations and warranties had been made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iiib) The Title Company is irrevocably committed to issue the Title Policy RMC shall have performed all covenants and the Public Parties have delivered any documents reasonably requested obligations undertaken by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available RMC herein in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened and complied with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit all conditions required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order this Agreement to undertake and complete the Comprehensive Grading Work as shown be performed or complied with by it on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of before the Closing Date; and
(iic) ▇▇▇▇-▇▇▇▇ shall have delivered to RMC all of the documents provided herein for said delivery.
10.2 The obligations of ▇▇▇▇-▇▇▇▇ to purchase the Property and to perform the other covenants and obligations to be performed by ▇▇▇▇-▇▇▇▇ on or before the Closing Date shall be subject to the following conditions (all or any of which may be waived, in whole or in part, by ▇▇▇▇-▇▇▇▇):
(a) The Company survey of the Property shall include a certification to ▇▇▇▇-▇▇▇▇ and its successors and assigns;
(b) The representations and warranties made by RMC herein shall be true and correct in all material respects with the same force and effect as though such representations and warranties had been made on and as of the Closing Date;
(c) RMC shall have paid performed all fees covenants and expenses of obligations undertaken by RMC herein in all respects and complied with all conditions required by this Agreement to be performed or complied with by it on or before the Project Bonds Closing Date;
(d) The Title Company is unconditionally prepared to issue a Title Policy meeting the requirements for an "insurable title" as set forth herein, and in Section 3.3 hereof;
(e) The Property shall be in compliance with all other fees and expenses Environmental Laws;
(f) RMC shall have delivered to ▇▇▇▇-▇▇▇▇ all of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; anddocuments provided herein for said delivery.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 1 contract
Conditions Precedent to Closing. The obligation of each Lender to make an Advance shall be subject to the conditions precedent that the Effective Date shall have occurred and the following conditions have been satisfied:
(a) The Company’s obligation to consummate Agent shall have received on or before the Closing is expressly conditioned upon the satisfaction or waiver of Date the following, each dated the Closing Date, in form and substance satisfactory to the Agent and in sufficient copies for each Lender:
(i) All representations a Notice of Borrowing in accordance with the requirements hereof;
(ii) any Note required by any Lender executed by the Borrower and warranties made payable to the order of such Lender pursuant to Section 2.16;
(iii) a solvency certificate substantially in the form attached hereto as Exhibit E, signed by the chief financial officer, chief accounting officer or other officer with equivalent duties of the Public Parties set forth Borrower acceptable to the Agent, attesting to the solvency of the Borrower and its Subsidiaries after giving effect to the Transactions on the Closing Date;
(iv) a certificate signed by an officer of the Borrower certifying that the conditions specified in Section 5.1 above clauses (b), (c), (d) and (e) have been satisfied;
(i) The Specified Representations shall be true and correct in all material respects as of the Closing Date (except in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided that to the extent any representation and warranty is qualified as to “materiality,” “Material Adverse Effect” or similar language such representation and warranty shall be true and correct (after giving effect to any qualification therein) in all respects on such date and (ii) Specified Acquisition Agreement Representations shall be true and correct as of the Closing Date as if made on the Closing Date;.
(iic) Since the date of the Acquisition Agreement, there shall not have occurred any “Business Material Adverse Effect” (as defined in the Acquisition Agreement).
(d) No event “Event of default beyond any applicable notice Default” (as such term is defined in the Amended and cure periods on Restated Credit Agreement dated as of October 25, 2017 among the part Borrower, the lenders party thereto and Citibank as administrative agent, as amended pursuant to an Amendment dated as of July 27, 2018 (the “Revolving Credit Agreement”)) under Section 6.01(a) or Section 6.01(e) (solely with respect to the Borrower) of the Public Parties has occurred and is continuing hereunder as of the Closing Date;Revolving Credit Agreement shall exist.
(iiie) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties Acquisition shall have delivered any documents reasonably requested by the Title Company been or shall be, substantially simultaneously with such Borrowing, consummated in order for the Title Company to issue the Title Policy all material respects in accordance with the terms hereof;of the Acquisition Agreement (as in effect on July 2, 2018) without giving effect to any amendments, modifications, supplements, waivers or consents thereto by the parties to the Acquisition Agreement that are materially adverse to the interests of the Lenders or the Lead Arrangers and not approved by the Initial Lead Arrangers (which approval shall not be unreasonably withheld, conditioned or delayed). It is understood and agreed that any change to the definition of “Business Material Adverse Effect” in the Acquisition Agreement shall be deemed materially adverse to the Lenders and shall require the consent of the Initial Lead Arrangers; it being understood that (a) any reduction in the acquisition consideration of not greater than 10% shall not be deemed to be materially adverse to the interests of the Lenders if such reduction is applied to reduce the Bridge Facility on a dollar-for-dollar basis, (b) any increase in the acquisition consideration shall not be deemed to be materially adverse to the interests of the Lenders if such increase is not funded with additional indebtedness, and (c) no modification to the acquisition consideration as a result of any purchase price adjustment or working capital adjustment expressly contemplated by the Acquisition Agreement as of July 2, 2018 shall constitute a reduction or increase in the acquisition consideration.
(ivi) The Public Parties Lenders shall have provided written confirmation received (A) audited consolidated balance sheets and related statements of operations, stockholders’ equity and cash flows of the Borrower for the three fiscal years ended at least 60 days prior to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(dClosing Date (without any qualified audit opinion thereon), (B) above to perform all audited consolidated balance sheet and related statements of operations, parent company investment and cash flows of the Public Parties’ respective obligations hereunder remain available in all respects Acxiom Marketing Solutions business as of and for the applicable fiscal years ended March 31, 2017 and March 31, 2018, (C) unaudited consolidated balance sheets and related statements of operations, stockholders’ equity and cash flows of the Borrower for each completed fiscal quarter ended at least 45 days prior to the Closing Date and (D) unaudited consolidated balance sheets and related statements of operations of the Acxiom Marketing Solutions business as of and for each completed fiscal quarter subsequent to March 31, 2018 ended at least 45 days prior to the Closing Date, to which audited and unaudited financial statements shall be prepared in accordance with, or reconciled to, GAAP and (ii) the extent not previously expended;
Lenders shall have received a pro forma consolidated balance sheet and related pro forma statement of operations of the Borrower (vbased on the financial statements required by clause (i) There is no litigation pending or threatened above with respect to the Project Site which (ABorrower’s fiscal and quarter year ends) has resulted in a final order to as of and for the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact 12-month period ending on the ability last day of the Company or the Public Parties most recently completed period for which financial statements are required to perform their obligations hereunder (other than litigation relating be delivered pursuant to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that clause (i) above, prepared after giving effect to the State has assumed Transactions as if the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction Transactions had occurred as part of such litigation dates (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of operations), which impacts the ability need not be prepared in compliance with Regulation S-X of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 Securities Act of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972)1933, as amendedamended (it being understood that a pro forma presentation for the Borrower’s 12-month period ending March 31, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance 2018 combined with the Current Site Plan have been obtainedAcxiom Marketing Solutions fiscal year ended March 31, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by 2018 is acceptable to satisfy this Agreement, including the Rental Agreement and all documents related to the Project Bondscondition).
(bg) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company Borrower shall have paid all fees due to the Agent, the Lead Arrangers and the Lenders pursuant to the Fee Letter and reasonable and documented expenses of the Project Bonds as set forth herein, Agent and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior Lead Arrangers to the Closing; andextent such expenses have been invoiced at least three Business Days before the Closing Date.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 1 contract
Sources: Credit Agreement (Interpublic Group of Companies, Inc.)
Conditions Precedent to Closing. Bank shall not be obligated to ------------------------------- make any of the Loans or incur any Letter of Credit Obligations, or to take, fulfill, or perform any other action under this Agreement, until the following conditions have been satisfied in a manner satisfactory to Bank or waived in writing by Bank:
(a) The Company’s obligation Bank shall have received each of the documents set forth on the Schedule of Documents, each duly executed by the appropriate parties and in form and substance satisfactory to consummate Bank;
(A) Bank shall have received a fully executed original of a pay-off letter satisfactory to Bank confirming that all of the Prior Lender Obligations will be repaid in full from the proceeds of the initial Loan and all Liens upon any of the property of Borrower or any of its Subsidiaries in favor of Prior Lender shall be terminated by Prior Lender immediately upon such payment; and (B) all letters of credit issued or guaranteed by Prior Lender shall have been cash collateralized, supported by a guaranty of Bank or supported by a Letter of Credit issued pursuant to this Agreement as mutually agreed upon by Bank, Borrower and Prior Lender; and
(ii) Bank shall have received a fully executed original of a pay-off letter satisfactory to Bank confirming that all of obligations of Borrower to LHF will be repaid in full on the Closing is expressly conditioned Date, and all Liens upon the satisfaction or waiver any of the following:property of Borrower or any of its Subsidiaries in favor of LHF shall be terminated by LHF immediately upon such payment.
(ic) All representations Bank shall have received satisfactory evidence that Borrower and warranties its Subsidiaries have obtained all required consents and approvals of all Persons, including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the other Loan Documents and the consummation of the Public Parties set forth in Section 5.1 above shall Related Transactions;
(d) all of the assets supporting the initial Loans to be true made and correct as Letters of Credit to be issued and the amount, if any, of the reserves to be established on the Closing Date shall be sufficient in value, as determined by Bank, to provide Borrower with Net Borrowing Availability of not less than $1,750,000 (after giving effect to such initial Loans and Letters of Credit and the amount, if made any, of the reserves to be established on the Closing Date in accordance with this Agreement), without any deterioration in Borrower's accounts payable or increase in Borrower's other current liabilities above the average of those reflected on Borrower's balance sheet for the three months preceding the Closing Date;
(iie) No event payment by Borrower of default beyond any applicable notice all fees, costs, and cure periods on the part expenses of the Public Parties has occurred closing (including reasonable fees of consultants and is continuing hereunder counsel to Bank presented as of the Closing Date);
(iiif) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Dateno action, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the Stateproceeding, leased to the JDAinvestigation, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project)regulation, or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition legislation shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtainedinstituted, the Wetland Mitigation credits have been purchasedthreatened, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documentsproposed before any court, including without limitation the Definitive DocumentsGovernmental Authority, necessary and reasonable for or legislative body to enjoin, restrain, or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or the consummation of the transactions contemplated by this Agreementhereby or thereby and that, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation in Bank's sole judgment, would make it inadvisable to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this AgreementAgreement or any other Loan Document;
(g) Bank shall have completed its business and legal due diligence, including a roll forward of its previous Collateral audit, with results satisfactory to Bank;
(i) Bank shall have received fully executed copies of the Rental Agreement Subordinated Note and all documents related each of the other Related Transactions Documents, each of which shall be in form and substance satisfactory to Bank and its counsel, and (ii) the Related Transactions shall have been consummated in accordance with the terms of the Subordinated Note and the other Related Transactions Documents; and
(i) no Material Adverse Effect shall have occurred since the most recent audited Financial Statements delivered to Bank prior to the Project BondsClosing Date. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, ----------- ----------- and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 2.1 has been complied with ----------- to Bank's satisfaction or specifically waived in writing by Bank.
Appears in 1 contract
Conditions Precedent to Closing. Section 7.1 Conditions to the Company’s Obligations at the Initial Closing. The obligations of the Company and OpCo with respect to each Purchaser required to be performed on the Closing Date shall be subject to the satisfaction or waiver in writing, at or prior to the Initial Closing, of the following conditions:
(a) The representations and warranties of such Purchaser contained in this Agreement which are qualified by any “materiality”, “material adverse effect” or any similar qualifier shall be true and correct in all respects and the representations and warranties of such Purchaser which are not so qualified shall be true and correct in all material respects, in each case on and as of the Closing Date except for representations and warranties made as of a specific date which shall be true and correct, or true and correct in all material respects, as the case may be, as of such date.
(b) Such Purchaser shall have performed in all material respects all obligations and agreements, and complied in all material respects with all covenants contained in this Agreement to be performed and complied with by such Purchaser at or prior to the Closing Date.
(c) The Company’s obligation Board of Directors shall have approved the Financing Documents and the consummation of the Transactions.
(d) No provision of any Applicable Law shall be in effect which has the effect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the Transactions.
(e) The Purchasers shall have executed and delivered the Investor Rights Agreement.
(f) The Senior Lender shall have approved the form of Debenture, including the subordination provisions therein.
(g) The Company shall have received the purchase price payable in respect of the Debentures and Warrants purchased by such Purchaser in the Initial Closing.
Section 7.2 Conditions to consummate Purchaser’s Obligations at the Initial Closing. The obligations of each Purchaser required to be performed on the Closing is expressly conditioned upon Date shall be subject to the satisfaction or waiver in writing, at or prior to the Initial Closing, of the followingfollowing conditions:
(ia) All The representations and warranties of the Public Parties set forth Company and OpCo contained in Section 5.1 above this Agreement which are qualified by any “materiality”, “material adverse effect” or any similar qualifier shall be true and correct in all respects and the representations and warranties of the Company and OpCo which are not so qualified shall be true and correct in all material respects, in each case on and as of the Closing Date except for representations and warranties made as if made on of a specific date which shall be true and correct, or true and correct in all material respects, as the case may be, as of such date.
(b) The Company and OpCo shall have performed all of its obligations, agreements and covenants contained in the Financing Documents to be performed and complied with at or prior to the Closing Date;.
(iic) No event provision of default beyond any applicable notice and cure periods on Applicable Law shall be in effect which has the part effect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the Public Parties has occurred and is continuing hereunder as of the Closing Date;Transactions.
(iiid) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties OpCo shall have delivered any documents reasonably requested to Purchaser a certificate executed by it or on its behalf by duly authorized representative, dated the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;effect that each of the conditions specified in this Section 7.2 has been satisfied.
(ve) There is no litigation pending or threatened with respect The Company and R▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. shall have executed and delivered the Investor Rights Agreement.
(f) The Company shall have executed and delivered the Warrants to be issued at the Project Site which Initial Closing.
(Ag) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented The Purchasers shall have received an opinion of counsel to the Company, dated the Closing Date, and addressed to the Purchasers, in form and substance reasonably acceptable to the Purchasers.
(Bh) The Company and OpCo shall have executed and delivered the Debentures to be issued at the Initial Closing.
(i) Each Subsidiary (other than OpCo) shall have executed and delivered a guaranty in the form attached as Exhibit F (the “Guaranty”).
(j) There shall not have occurred any event, circumstance, condition, fact, effect or other matter which has had or would reasonably be expected to have (i) a Material Adverse Effect or (ii) a material impact adverse effect on the ability of the Company or the Public Parties to perform their obligations hereunder on a timely basis any obligation under this Agreement or to consummate the Transactions.
(other than litigation relating k) The Company shall have delivered to development or permitting the Purchasers a certificate of the Project), or (C) otherwise materially and adversely affects the ability secretary of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that Company setting forth (i) a copy of the certificate of incorporation of the Company and all amendments thereto as in effect on the date hereof and on the Closing Date all certified by the Secretary of State of the State has assumed the responsibility and cost of defending any such litigationDelaware, (ii) a copy of the State is actively by-laws of the Company, as in effect on the date hereof and vigorously defending any such pending litigationon the Closing Date, and (iii) no injunctive relief copies of all resolutions of the Company authorizing the Transactions; and (iv) an incumbency certificate setting forth the name, title and authorized signature of each officer of the Company or OpCo who will execute documents in connection with the Transactions.
(l) The Company shall have executed and delivered the Management Rights Letter.
Section 7.3 Conditions to the Company’s Obligations at the Second Closing. The obligations of the Company and OpCo with respect to each Purchaser required to be performed at the Second Closing shall be subject to the satisfaction or waiver in writing, at or prior to the Second Closing, of the following conditions:
(a) The Company shall have received the purchase price payable in respect of the Debentures and Warrants purchased by such Purchaser in the Second Closing.
(b) No provision of any Applicable Law shall be in effect which has the effect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the Transactions.
Section 7.4 Conditions to Purchaser’s Obligations at the Second Closing. The obligations of each Purchaser required to be performed at the Second Closing shall be subject to the satisfaction or waiver in writing, at or prior to the Second Closing, of the following conditions:
(a) There shall have not occurred an Event of Default under the Debentures.
(b) There shall not have occurred, and be continuing, any Default under the Debentures.
(c) No provision of any Applicable Law shall be in effect which has the effect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the Transactions.
(d) The Company shall have executed and delivered the Warrants to be issued at the Second Closing.
(e) The Company and OpCo shall have executed and delivered the Debentures to be issued at the Second Closing.
Section 7.5 Conditions to the Company’s Obligations at a Subsequent Closing. The obligations of the Company and OpCo with respect to each Purchaser required to be performed on each Subsequent Closing Date shall be subject to the satisfaction or waiver in writing, at or prior to the Subsequent Closing, of the following conditions:
(a) The representations and warranties of such Purchaser contained in this Agreement which are qualified by any “materiality”, “material adverse effect” or any similar qualifier shall be true and correct in all respects and the representations and warranties of such Purchaser which are not so qualified shall be true and correct in all material respects, in each case on and as of the Subsequent Closing Date except for representations and warranties made as of a specific date which shall be true and correct, or true and correct in all material respects, as the case may be, as of such date.
(b) Such Purchaser shall have performed in all material respects all obligations and agreements, and complied in all material respects with all covenants contained in this Agreement to be performed and complied with by such Purchaser at or prior to the Subsequent Closing Date.
(c) No provision of any Applicable Law shall be in effect which has the effect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the Transactions.
(d) The Purchasers shall have executed and delivered the Investor Rights Agreement.
(e) The Company shall have received the purchase price payable in respect of the Debentures and Warrants purchased by such Purchaser in the Subsequent Closing.
Section 7.6 Conditions to Purchaser’s Obligations at each Subsequent Closing. The obligations of each Purchaser required to be performed on the Subsequent Closing Date shall be subject to the satisfaction or waiver in writing, at or prior to the Subsequent Closing, of the following conditions:
(a) The representations and warranties of the Company and OpCo contained in this Agreement which are qualified by any “materiality”, “material adverse effect” or any similar qualifier shall be true and correct in all respects and the representations and warranties of the Company and OpCo which are not so qualified shall be true and correct in all material respects, in each case on and as of the Subsequent Closing Date except for representations and warranties made as of a specific date which shall be true and correct, or true and correct in all material respects, as the case may be, as of such date.
(b) The Company and OpCo shall have performed all of its obligations, agreements and covenants contained in the Financing Documents to be performed and complied with at or prior to the Subsequent Closing Date.
(c) No provision of any Applicable Law shall be in effect which has the effect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the Transactions.
(d) The Company and OpCo shall have delivered to Purchaser a certificate executed by it or on its behalf by duly authorized representative, dated the Subsequent Closing Date, to the effect that each of the conditions specified in this Section 7.6 has been granted by satisfied.
(e) The Company shall have executed and delivered the Warrants.
(f) The Company and OpCo shall have executed and delivered the Debentures.
(g) Each Subsidiary (other than OpCo) shall have executed and delivered the Guaranty.
(h) There shall not have occurred any court of competent jurisdiction as part of such litigation event, circumstance, condition, fact, effect or other matter which impacts has had or would reasonably be expected to have (i) a Material Adverse Effect or (ii) a material adverse effect on the ability of the Company to actively construct, develop perform on a timely basis any obligation under this Agreement or use to consummate the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project BondsTransactions.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses delivered to the Purchasers a certificate of the Project Bonds as set secretary of the Company setting forth herein, (i) a copy of the certificate of incorporation of the Company and all other fees amendments thereto as in effect on the date hereof and expenses on the Subsequent Closing Date all certified by the Secretary of State of the JDA State of Delaware, (ii) a copy of the by-laws of the Company, as required by Section 3.6(c) in effect on the date hereof to be paid and on or prior to the Closing; and.
Subsequent Closing Date, (iii) The Company and the Public Parties shall have agreed upon the form copies of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation resolutions of the transactions contemplated by this AgreementCompany authorizing the Transactions; and (iv) an incumbency certificate setting forth the name, including title and authorized signature of each officer of the Rental Agreement and all Company or OpCo who will execute documents related to in connection with the Project BondsTransactions.
Appears in 1 contract
Sources: Securities Purchase Agreement (Superior Consultant Holdings Corp)
Conditions Precedent to Closing. On the date hereof (or, in the case of the items listed in paragraphs (b) and (d) of this Section, on or prior to the date of the first Borrowing under this Agreement):
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction Agent (or waiver of the following:
its counsel) shall have received either (i) All representations a counterpart of this Agreement and warranties of the Public Parties set forth in Section 5.1 above shall be true and correct as LLC Guarantee signed on behalf of the Closing Date as if made on the Closing Date;
each party thereto, or (ii) No event written evidence satisfactory to the Agent (which may include telecopy transmissions of default beyond any applicable notice signed signature pages) that this Agreement and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan LLC Guarantee have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation signed on behalf of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bondseach party thereto.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver Agent shall have received a favorable written opinion of the following:
(i) No event of default beyond any applicable notice H▇▇▇▇ & H▇▇▇▇▇▇ LLP, counsel to the Borrower, to the effect and cure periods on the part of the Company has occurred covering those matters set forth in Exhibit C-1 hereto, and is continuing as of the Closing Date; and
(ii) C▇▇▇ ▇. ▇▇▇▇▇, Assistant General Counsel of the Borrower, to the effect and covering those matters set forth in Exhibit C-2 hereto. The Company Borrower hereby instructs its counsel to deliver such opinions to the Agent.
(c) All legal matters incidental to this Agreement and the Borrowings hereunder shall be satisfactory to the Lenders and to Cravath, Swaine & M▇▇▇▇ LLP, counsel for the Agent.
(d) The Agent shall have paid all fees received such documents and expenses certificates as the Agent or its counsel shall reasonably have requested relating to the organization, existence and good standing of the Project Bonds as Borrower and Janus Capital Management LLC, the authorization of the Transactions and any other legal matters relating to the Borrower, Janus Capital Management LLC, this Agreement or the Transactions, all in form and substance satisfactory to the Agent and its counsel.
(e) The Agent shall have received a certificate, dated the date hereof and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth herein, in paragraphs (b) and (c) of Section 4.01.
(f) The Agent shall have received all Fees and other fees amounts due and expenses of the JDA as required by Section 3.6(c) hereof to be paid payable on or prior to the Closing; anddate hereof.
(iiig) The Company and the Public Parties Agent shall have agreed upon received evidence satisfactory to it that the form of commitments under the Existing Credit Agreement shall have been terminated and all customary documentsamounts outstanding or accrued thereunder, including without limitation the Definitive Documentsall fees, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bondsshall have been paid in full.
Appears in 1 contract
Sources: Credit Facility Agreement (Janus Capital Group Inc)
Conditions Precedent to Closing. The obligation of Lender to enter into this Agreement shall be subject to the satisfaction of the following conditions precedent, all at Borrower’s sole cost and expense:
(a) The Company’s obligation On or prior to consummate the Closing date hereof, Borrower shall have executed and delivered to Lender the Loan Documents (including this Agreement) to which it is expressly conditioned upon the satisfaction or waiver a party, and all other documents required by this Agreement, all in form and substance and in such number of the following:counterparts as may be required by Lender;
(ib) All representations The representations, warranties, and warranties covenants of the Public Parties Borrower as set forth in Section 5.1 above this Agreement or in any other Loan Document shall be true and correct in all material respects as of such date (except to the Closing Date as if made on the Closing Dateextent specifically limited to a specified date);
(iic) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation On or prior to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Datedate hereof, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties Lender shall have agreed upon the form received a favorable legal opinion of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of counsel to Borrower covering the transactions contemplated by this Agreement, including in form, scope and substance reasonably satisfactory to Lender;
(d) Lender shall have received certified resolutions of Borrower authorizing the Rental execution of all documents and instruments contemplated by this Agreement;
(e) Lender shall have received all fees, charges and expenses which are due and payable as specified in this Agreement and any Loan Documents, except those fees to be paid with proceeds from the initial Loan;
(f) Borrower shall have provided Lender with all documents related financial statements, reports and certificates required by this Agreement;
(g) On or prior to the Project Bonds.date hereof, Lender shall have received the articles of incorporation and bylaws of Borrower, and Lender’s counsel shall have reviewed the foregoing documents and be reasonably satisfied with the validity, due authorization and enforceability thereof and of all Loan Documents;
(bh) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:There shall have occurred no Material Adverse Effect since March 31, 2013;
(i) No event Lender’s reasonable satisfactory review prior to the date hereof of default beyond any applicable notice all environmental matters related to the Mortgaged Properties;
(j) Borrower must maintain insurance as required by Section 11.14, and cure periods on deliver to Lender evidence of such insurance coverage;
(k) Borrower shall have executed and delivered to Lender blank form letters in lieu of division orders, in form and substance satisfactory to Lender;
(l) On or prior to the part date hereof, Lender shall have received title opinions or other title information reasonably acceptable to Lender covering at least eighty percent (80%) of the Company has occurred and is continuing as present worth of Borrower’s proved petroleum reserves that comprise a portion of the Closing DateBorrowing Base Amount;
(m) On or prior to the date hereof, Borrower shall have delivered to Lender a listing of the name and address of each purchaser of production from the Mortgaged Properties or, for those Mortgaged Properties for which Borrower is a non-operator, the name and address of the operator of each Mortgaged Property;
(n) On or within forty-five (45) days after the date of this Agreement, Borrower shall have commenced the transfer of all of its primary deposit and investment accounts to Lender;
(o) On or prior to the date hereof, Borrower has entered into the Second Lien Credit Agreement; and
(iip) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on On or prior to the Closing; and.
(iii) The Company date hereof, Lender and the Public Parties Borrower shall have agreed upon entered into the form of all customary documents▇▇▇▇▇▇▇▇ Intercreditor Agreement. Lender reserves the right, including without limitation the Definitive Documentsin its sole discretion, necessary and reasonable for the consummation to waive any one or more of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bondsforegoing conditions precedent.
Appears in 1 contract
Conditions Precedent to Closing. SECTION 7.1 Conditions to the Corporation's Obligations. The obligations of the Corporation hereunder required to be performed at the Closing shall be subject, at its election, to the satisfaction or waiver (which waiver, if so requested by Thane, shall be made in writing), at or prior to the Closing, of the following conditions:
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) All representations and warranties of Thane contained in this Agreement and all information contained in any exhibit or schedule hereto delivered by, or on behalf of, Thane, to the Public Parties set forth in Section 5.1 above Corporation and the Controlling Stockholders, shall be true and correct as of in all material respects when made and on the Closing Date as if though then made on (except that to the extent such representation and warranty is qualified by materiality, such representation and warranty shall be true and correct), except as expressly provided herein. The president of Thane shall have delivered to the Corporation and the Controlling Stockholders a certificate (which shall be addressed to the Corporation and the Controlling Stockholders), dated the Closing Date;, in the form designated Exhibit H hereto, certifying to the foregoing.
(iib) No event of default beyond any applicable notice Thane shall have performed in all material respects all obligations and cure periods on agreements, and complied in all material respects with all covenants, contained in this Agreement and the part of the Public Parties has occurred other Documents, to be performed and is continuing hereunder as of complied with by Thane at or prior to the Closing Date;.
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vic) All federal authorizations material governmental and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are regulatory approvals and clearances and all third-party consents necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreementthe Documents to occur on the Closing Date shall have been obtained and shall be in full force and effect, including the Rental Agreement Corporation and all documents related the Controlling Stockholders shall reasonably be satisfied that the consummation of such transactions does not and will not contravene any Applicable Law, except to the Project Bondsextent any contravention or contraventions, individually or in the aggregate, could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(bd) The Public Parties’ obligation Thane shall have delivered to consummate the Closing is expressly conditioned upon Corporation and the satisfaction Controlling Stockholders a certificate, executed by Thane or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing its behalf by a duly authorized representative, dated as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses , certifying that each of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by conditions specified in this Section 3.6(c) hereof 7.1 has been satisfied with respect to be paid on or prior to the Closing; andThane.
(iiie) The Company and A registration statement on Form S-4 registering the Public Parties issuance of the shares of Thane Common Stock issuable to the Corporation stockholders pursuant to the Merger shall have agreed upon been declared effective by the form Commission and no proceedings for a stop order suspending the effectiveness of all customary documentsthe Registration Statement or the Thane Common Stock shall have been instituted or pending or threatened.
(f) There shall be no litigation, including without limitation proceeding or other action seeking an injunction or other restraining order, damages or other relief from a Governmental Authority pending or threatened which, in the Definitive Documentsreasonable judgment of the Corporation, necessary and reasonable for would materially adversely affect the consummation of the transactions contemplated by the Documents on the terms contemplated hereby and thereby and there shall be no litigation, proceeding or other action (including, without limitation, relating to environmental matters or the Thane Employee Benefit Plans) pending or threatened against the Thane Entities which could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Corporation shall have received a certificate, dated the Closing Date, of the president and chief financial officer of Thane, in the form of Exhibit I hereto, certifying to the foregoing.
(g) Thane shall have delivered to the Corporation and the Controlling Stockholders certificates of the appropriate public officials, if available, to the effect that each of the Thane Entities is a validly existing corporation in good standing (to the extent that the concept of good standing is recognized under the laws of the relevant jurisdiction of organization) in its jurisdiction of organization dated not more than ten (10) days prior to the Closing Date.
(h) Thane shall have delivered to the Corporation and the Controlling Stockholders a certificate of the Secretary of its Board of Directors, in the form of Exhibit J hereto, (i) certifying that a true and correct copy of the Charter and Bylaws of the each of the Thane Entities and all resolutions of the Board of Directors and shareholders of Thane authorizing the execution and delivery of this Agreement, including the Rental Agreement and all documents related each Document to which Thane is a party and authorizing the performance by Thane of the transactions contemplated hereby and thereby is attached thereto and (ii) containing the incumbency and specimen signature of each of the officers of Thane.
(i) An opinion of counsel of Thane addressed to the Project Bonds.Corporation dated as of the Closing Date, satisfactory in form and substance to the Corporation with respect to the matters set forth in Exhibit K.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Reliant Interactive Media Corp)
Conditions Precedent to Closing. The initial disbursement of the Loans shall be subject to the following conditions precedent, provided, however, that if the Lender elects to make such initial disbursement prior to all of such conditions precedent being satisfied, the Borrowers agree that they shall cause all such conditions to be satisfied within 30 days after such disbursement:
(a) The Company’s obligation Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:Lender.
(ib) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties of the Public Parties set forth in Section 5.1 above contained herein shall be true and correct as of the Closing Date as if made on at the Closing Date;.
(iid) No event of default beyond All legal matters incident to the Loans shall be satisfactory to counsel for the Lender, and the Borrowers agree to execute and deliver to the Lender such additional documents and certificates relating to the Loans as the Lender reasonably may request.
(e) Financing statements in form and substance satisfactory to the Lender shall have been properly filed in each office where necessary to perfect the Lender's security interest in the Collateral, termination statements shall have been filed with respect to any applicable notice and cure periods on the part other financing statements covering all or any portion of the Public Parties has occurred Collateral and is continuing hereunder all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) All Intellectual Property subject or entitled to United States copyright, patent or trademark protection, and such documents as are necessary to perfect the Lender's security interest therein, shall have been duly registered with the United States Patent and Trademarks Office or the Register of Copyrights, as applicable, and the Lender shall have received a search report confirming that no Liens are recorded with respect thereto.
(g) The Borrowers shall have delivered to the Lender (1) certified copies of evidence of all corporate actions taken by the Borrowers to authorize the execution and delivery of the Loan Documents, (2) certified copies of the article of incorporation, and bylaws of the Borrowers, (3) a certificate of incumbency for the officers of the Borrowers executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days prior to the Closing Date;, from the appropriate state official of any state in which the Borrowers are incorporated or qualified to do business, and (5) such additional supporting documents as the Lender or counsel for the Lender reasonably may request.
(iiih) The Title Company is irrevocably committed Lender shall have received (1) a Borrowing Base Certificate, (2) an Aging, and (3) a report setting forth the status of all contracts relating to issue Eligible Receivables from the Title Policy most recent fiscal month and shall be in form and substance satisfactory to the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;Lender.
(ivi) The Public Parties Lender shall have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all received a field examination report of the Public Parties’ respective obligations hereunder remain available Collateral in all respects as of the applicable Closing Date, form and substance acceptable to the extent not previously expended;it.
(vj) There is no litigation pending or threatened with respect to The Lender shall have received the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented written opinion of counsel to the Company, in form and substance satisfactory to the Lender.
(Bk) would The Lender shall have a material impact on received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the ability Collateral other than those permitted by the Agreement.
(l) The Lender shall have received evidence that the Borrowers have obtained the insurance required by this Agreement.
(m) The Lender shall have received such landlord and mortgage waivers as it shall require.
(n) The Lender shall have received the audited financial statements of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project)for its fiscal year ending on March 31, or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds1999.
(bo) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company Lender shall have paid all fees and expenses of received the Project Bonds as set forth hereinRelease Agreement, and all other fees and expenses of duly executed by the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; andBorrowers.
(iiip) The Company and the Public Parties Lender shall have agreed upon received such merger documents evidencing the form merger of all customary documents, including without limitation Technology into the Definitive Documents, necessary and reasonable for Company as the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project BondsLender shall require.
Appears in 1 contract
Conditions Precedent to Closing. (a) The Company’s obligation of Purchaser to consummate the Closing transactions contemplated by this Agreement is expressly conditioned upon subject to the satisfaction or waiver of the following:
(i) All representations and warranties of the Public Parties set forth in Section 5.1 above shall be true and correct as of the Closing Date as if made following conditions on or before the Closing Date;.
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(via) All federal governmental filings, authorizations and the Wetland Permit approvals that are required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreementhereby shall have been duly made and obtained on terms and conditions reasonably satisfactory to Purchaser, including all filings required by the Rental Agreement Hart-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 of the United States of America or the EC Merger Regulation as amended or under the law of any other jurisdiction in which Purchaser or Seller does business having authority over the transactions contemplated hereby, and all documents related to the Project Bondswaiting period, if any, required by such statutes or regulations shall have terminated or expired.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction No proceeding brought by any third party or waiver of the following:
(i) No event of default beyond governmental entity shall be pending or threatened which seeks any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth hereininjunction, and all restraining order or other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the order which would prohibit consummation of the transactions contemplated hereby or materially impair the ability of Purchaser to own and operate the business and the assets of the Company and its Subsidiaries after the Closing Date. particular, making all necessary filings with any applicable governmental entity and cooperating with each other in connection with such filings and any other responses to governmental entities; provided, however, that in no event shall Purchaser be obligated to consider, or consummate, any sale, disposition, segregation or other arrangement affecting any assets or properties owned by this Agreementeither Purchaser or its affiliates, including on the Rental Agreement one hand, or by the Company and all documents related its Subsidiaries, on the other hand, on account of the transaction contemplated herein, or any other action which would limit the freedom of Purchaser and its affiliates to own and operate their business, assets and properties as they see fit. Seller shall assist Purchaser free of charge in the Project Bondspertinent procedures and, in particular, provide the necessary information on the Companies for filings to be made by Purchaser.
Appears in 1 contract
Conditions Precedent to Closing. (a) The Company’s Purchaser's obligation under this Agreement to consummate purchase the Closing Premises is expressly conditioned upon subject to the satisfaction or waiver fulfillment of each of the following:following conditions, subject, however, to the provisions of Section 10(c):
(i) All The representations and warranties of the Public Parties set forth in Section 5.1 above Seller contained herein shall be true true, accurate and correct in all material respects as of the Closing Date except to the extent they relate only to an earlier date (subject to the provisions of Section 8(a));
(ii) Seller shall be ready, willing and able to deliver title to the Premises in accordance with the terms and conditions of this Agreement;
(iii) Seller shall have satisfied the condition set forth in Section 26 of this Agreement;
(iv) Seller shall have delivered all the documents and other items required pursuant to Section 11, and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by the Seller at or prior to the Closing; and
(v) Seller shall have satisfied the condition set forth in Section 26 of this Agreement.
(b) Seller's obligation under this Agreement to sell the Premises to Purchaser is subject to the fulfillment of each of the following conditions, subject, however to the provisions of Section 10(c):
(i) the representations and warranties of Purchaser contained herein shall be true, accurate and correct in all material respects as if made on of the Closing Date;
(ii) No event of default beyond any applicable notice Purchaser shall have delivered the funds required hereunder and cure periods on all the part of documents to be executed by Purchaser set forth in Section 12 and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by Purchaser at or prior to the Public Parties has occurred and is continuing hereunder as of the Closing DateClosing;
(iii) The Title Company all consents and approvals of governmental authorities and parties to agreements to which Purchaser is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested a party or by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company which Purchaser's assets are bound that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened are required with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees been obtained and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof copies thereof shall have been delivered to be paid on Seller at or prior to the Closing; and
(iv) on or prior to Closing Date, (A) Purchaser shall not have applied for or consented to the appointment of a receiver, trustee or liquidator for itself or any of its assets unless the same shall have been discharged prior to the Closing Date, and no such receiver, liquidator or trustee shall have otherwise been appointed, unless same shall have been discharged prior to the Closing Date, (B) Purchaser shall not have admitted in writing an inability to pay its debts as they mature, (C) Purchaser shall not have made a general assignment for the benefit of creditors, (D) Purchaser shall not have been adjudicated a bankrupt or insolvent, or had a petition for reorganization granted with respect to Purchaser, (E) Purchaser shall not have filed a voluntary petition seeking reorganization or an arrangement with creditors or taken advantage of any bankruptcy, reorganization, insolvency, readjustment or debt, dissolution or liquidation law or statute, or filed an answer admitting the material allegations of a petition filed against it in any proceedings under any such law, or had any petition filed against it in any proceeding under any of the foregoing laws unless the same shall have been dismissed, canceled or terminated prior to the Closing Date.
(iiic) The Company and In the Public Parties event that any condition contained in Section 10(a) or (b) is not satisfied, the party entitled to the satisfaction of such condition as a condition to its obligation to close title hereunder shall have agreed upon as its sole remedy hereunder the form of all customary documents, including without limitation right to elect to (i) waive such unsatisfied condition whereupon title shall close as provided in this Agreement or (ii) terminate this Agreement. In the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by event such party elects to terminate this Agreement, including this Agreement shall be terminated and neither party shall have any further rights, obligations or liabilities hereunder, except as otherwise expressly provided in Sections 4(a)(i), 14, 15, 18, 24 and 25(e), and except that Purchaser shall be entitled to a return of the Rental Agreement and Downpayment (together with all documents related interest accrued thereon, if any). Nothing contained in this Section 10(c) shall be construed so as to (x) bestow any right of termination upon a party for the failure of a condition to be satisfied unless such party is expressly entitled to the Project Bondssatisfaction of such condition as provided in Section 10(a) or (b) or (y) reduce or diminish the rights of the parties hereto under Section 17.
Appears in 1 contract
Sources: Sale Purchase Agreement (Corporate Office Properties Trust)
Conditions Precedent to Closing. The obligations of each Party to close the transactions contemplated hereby is subject to the fulfillment of the following conditions, or waiver thereof by the party to whom the obligation is due, at or prior to Closing, and the Parties will use commercially reasonable efforts to cause such conditions to be fulfilled:
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) All representations and warranties made by each Party herein are true and correct in all material respects as of the Public Parties set forth in Section 5.1 above date hereof (except for representations and warranties that speak as of a certain date which shall be true and correct as of the Closing Date as if made on the Closing Date;such date).
(iib) No event Each Party shall have complied with all of default beyond any applicable notice its covenants required to be performed at or prior to the Closing, including the execution and cure periods on the part delivery of the Public Parties has occurred and is continuing hereunder as of the Closing Date;documents described in Section 1.6.
(iiic) The Title Company is irrevocably committed to issue the Title Policy Seller shall have obtained all necessary approvals and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all consents of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened its shareholders with respect to the Project Site which transactions contemplated hereby.
(Ad) has resulted Cheek shall have executed and delivered to Purchaser an employment agreement in a final order form acceptable to Purchaser.
(e) Seller and Purchaser shall have executed and delivered the effect Escrow Agreement, in form reasonably acceptable to Purchaser and Seller.
(f) Purchaser shall be satisfied in its reasonable discretion, with the results of any environmental investigation and title search that the Project Site is subject it performs prior to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that Closing with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigationReal Property;
(vig) All federal authorizations and the Wetland Permit required No action or proceeding by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan or before any court or other governmental body shall have been obtainedinstituted or threatened by any governmental body or person whatsoever which shall seek to restrain, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement prohibit or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of invalidate the transactions contemplated by this Agreement or which might affect the right of Purchaser to own the Assets or to own or operate the Business after the Closing. Notwithstanding anything to the contrary in this Agreement, including the Rental Agreement and all documents related obligations of Purchaser to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of close the transactions contemplated by this Agreement, including the Rental Agreement and all documents related hereby are also subject to the Project Bondspayoff amounts reflected in the Payoff Letters being less than Ten Million Nine Hundred Thousand Dollars ($10,900,000).
Appears in 1 contract
Conditions Precedent to Closing. The obligation of each Investor to acquire the Investor Shares at the Closing is subject to the fulfillment to such Investor’s satisfaction, on or prior to the Closing Date, of each of the following conditions, any of which may be waived by such Investor (as to itself only):
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) All representations and warranties of the Public Parties set forth in Section 5.1 above Company contained herein shall be true and correct in all material respects (except for those representations and warranties which are qualified as to materiality, in which case such representations and warranties shall be true and correct in all respects) as of the Closing Date as if date when made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;, as though made on and as of such date, except for such representations and warranties that speak as of a specific date.
(iiib) The Title Company is irrevocably committed shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to issue be performed, satisfied or complied with by it at or prior to the Title Policy Closing.
(c) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing, no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission, and the Public Parties Investor shall have delivered any documents reasonably requested by received the Title Company in order for the Title Company to issue the Title Policy Prospectus in accordance with the terms hereof;federal securities laws.
(ivd) The Public Parties No statute, rule, regulation, executive order, decree, ruling or injunction shall have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Datebeen enacted, to the extent not previously expended;
(v) There is no litigation pending entered, promulgated or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted endorsed by any court or governmental authority of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for that prohibits the consummation of any of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(be) The Public Parties’ obligation to consummate Since the Closing is expressly conditioned upon the satisfaction date of execution of this Agreement, no event or waiver series of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company events shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof occurred that has had or would reasonably be expected to be paid on or prior to the Closing; andhave a Material Adverse Effect.
(iiif) The Company and Investor Shares have been duly listed, subject to official notice of issuance, on the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project BondsNew York Stock Exchange.
Appears in 1 contract
Sources: Securities Purchase Agreement (Western Alliance Bancorporation)
Conditions Precedent to Closing. (a) The Company’s obligation of each Investor to consummate acquire Shares at the Closing is expressly conditioned upon subject to the satisfaction fulfillment to such Investor’s satisfaction, on or waiver prior to the Closing Date, of each of the following:following conditions, any of which may be waived by such Investor (as to itself only):
(i) All The representations and warranties of the Public Parties set forth in Section 5.1 above Corporation contained herein shall be true and correct in all material respects (except for those representations and warranties which are qualified as to materiality, in which case such representations and warranties shall be true and correct in all respects) as of the Closing Date as if date when made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;, as though made on and as of such date, except for such representations and warranties that speak as of a specific date.
(ii) The Corporation shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by it at or prior to the Closing.
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties No statute, rule, regulation, executive order, decree, ruling or injunction shall have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Datebeen enacted, to the extent not previously expended;
(v) There is no litigation pending entered, promulgated or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted endorsed by any court or governmental authority of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for that prohibits the consummation of any of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(biv) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver Corporation shall have obtained in a timely fashion any and all consents, permits, approvals, registrations and waivers necessary for consummation of the following:purchase and sale of the Shares at the Closing, all of which shall be and remain so long as necessary in full force and effect.
(iv) No Since the date of execution of this Agreement, no event or series of default beyond any applicable events shall have occurred that has had or would reasonably be expected to have a Material Adverse Effect.
(vi) The Shares have been duly listed, subject to official notice and cure periods of issuance, on the part of the Company has occurred and is continuing New York Stock Exchange.
(vii) The Common Stock shall not have been suspended, as of the Closing Date; and
(ii) The Company , by the Commission or the New York Stock Exchange from trading on the New York Stock Exchange nor shall suspension by the Commission or the New York Stock Exchange have paid all fees and expenses been threatened, as of the Project Bonds as set forth hereinClosing Date, and all other fees and expenses either (A) in writing by the Commission or the New York Stock Exchange or (B) by falling below the minimum listing maintenance requirements of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; andNew York Stock Exchange.
(iiiviii) The Company and the Public Parties Corporation shall have agreed upon delivered the form Corporation Deliverables in accordance with Section 1.3.
(ix) The Corporation shall have issued an aggregate of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental at least 4,347,826 Shares to Investors at Closing.
(x) This Agreement and all documents related shall not have been terminated as to the Project Bondssuch Investor in accordance with Section 7.10 herein.
Appears in 1 contract
Sources: Securities Purchase Agreement (Western Alliance Bancorporation)
Conditions Precedent to Closing. Lenders shall not be obligated to make any Loan, or to take, fulfill, or perform any other action under this Agreement, until the following conditions have been satisfied to each Lender's reasonable satisfaction or waived in writing by each Lender:
4.1.1 Agent shall have received:
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver originals of the following:documents set forth on Schedule 1.1e (Schedule of Documents), each duly executed by the appropriate parties, together with such other assurances, certificates, documents or consents related to the foregoing as Agent and/or Lenders reasonably may require, all in form and substance satisfactory to Agent and Lenders;
(b) such documentation as Agent may reasonably require to establish the due organization, valid existence and good standing of Borrower, its qualification to engage in business in each material jurisdiction in which it is engaged in business or required to be so qualified, its authority to execute, deliver and perform the Loan Documents to which it is a party, the identity, authority and capacity of each Authorized Signatory thereof authorized to act on its behalf, including certified copies of articles of organization and amendments thereto, bylaws and operating agreements and amendments thereto, certificates of good standing and/or qualification to engage in business, tax clearance certificates, certificates of corporate resolutions, incumbency certificates, certificates of Authorized Signatory, and the like;
(c) a list of all of Borrower's Material Contracts and a copy of such Material Contracts requested by Agent;
(d) a copy of all insurance certificates or other evidence of insurance for the Collateral;
(e) originals of favorable written opinions, dated as of the date hereof, of independent and internal counsel to the Borrower and the Owner Trustee, in each case acceptable to Agent, addressed to Agent and Lenders (and their respective participants and assigns) and otherwise in form and substance satisfactory to Agent as to such matters as Agent shall determine;
(f) copies of all consents and authorizations of, permits from or filings with, any Governmental Authority or other Person required in connection with the execution, delivery, performance or enforceability of the Loan Documents or any provision thereof and no material changes in governmental regulations affecting the Borrower, Agent or the Lenders shall have occurred;
(g) (i) a certified lien search for the State of Delaware and the State of California with respect to the Borrower and each of its Subsidiaries, (ii) an International Registry search with respect to each applicable item of Equipment; (iii) an FAA search with respect to each applicable item of Equipment, (iv) a Federal tax lien search with respect to the Borrower and each of its Subsidiaries, and any other searches as may be required by Agent;
(h) the "chattel paper" original of each Lease, which thereafter shall be held by Agent until the Termination Date; provided Agent shall not be liable in the event of any damage, loss or destruction of any of such documents or instruments;
(i) In respect of Owner Trustee (i) a copy of the resolutions of the Board of Directors of the Owner Trustee, in its individual capacity, certified by the secretary or an assistant secretary of the Owner Trustee, duly authorizing the execution, delivery and performance by the Owner Trustee of each of the Loan Documents to which the Owner Trustee is or will be a party and (ii) an incumbency certificate of Owner Trustee, as to the persons authorized to execute and deliver the Loan Documents to which it is or will be a party and the signatures of such person or persons; and
(j) Copies of the Satellite Notes and related documents as requested by Agent.
4.1.2 All of the financing statements and other documentation described in Section 3.1.7 shall have been filed with the appropriate Governmental Agencies, and Agent shall hold a first priority perfected Lien in the Collateral, for the ratable benefit of Lenders and Non-Lenders, subject only to Permitted Liens.
4.1.3 With respect to all Equipment, the following statements shall be true, and Agent shall have received evidence reasonably satisfactory to it (including, with respect to each item of Equipment which is eligible for registration with the International Registry, a printout of the "priority search certificate" from the International Registry showing the Equipment Owner's ownership interest with respect to such Equipment under a contract of sale) with respect to each item of Equipment and any related Lease included in the Borrowing Base to the effect that:
(a) the Borrower is in compliance with the applicable requirements of the Mortgage and Applicable Law;
(b) the applicable Equipment Owner has good title under Applicable Law to such item of Equipment, free and clear of Liens other than (i) Permitted Liens and (ii) the Lien of Agent;
(c) the Borrower has completed all registrations and filings required by any Aviation Authority in such jurisdiction and Agent shall hold a first priority Lien on each item of Equipment under Applicable Law (or with respect to Assets for which a pre-filing has been made, Agent shall be the beneficiary of a second priority Lien on such Equipment, and documentation sufficient to terminate any first priority lien on such Equipment shall have been delivered to Agent or to an escrow with such documentation to be filed upon payoff of such lien through Revolving Loan proceeds) and has provided, or is in a position to provide, all opinions of independent counsel as required by Agent; and
(d) Agent shall have received evidence reasonably satisfactory to it (including, with respect to each Cape Town Eligible Lease, a printout of the "priority search certificate" (as defined in the Regulations for the International Registry) from the International Registry relating to the Lessor's interest in and International Interest with respect to such item of Equipment under such Lease and including, with respect to all Leases that are not Cape Town Eligible, an original, favorable written opinion of independent counsel addressed to Agent and Lenders (and their respective participants and assigns) with respect to Agent's Lien on such item of Equipment;
4.1.4 payment by Borrower to Agent of all fees, costs, and expenses of closing (including reasonable fees of legal counsel to Agent presented as of the Closing Date);
4.1.5 no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before any court, Governmental Authority or legislative body to enjoin, restrain or prohibit, or to obtain damages in respect of, or which is related to or arises out of, this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby or thereby and which, in any Lender's sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Document;
4.1.6 Payment by Borrower to each Lender of any of the fees due to each Lender;
4.1.7 No circumstance or event shall have occurred, including but not limited to any litigation, actions, suits, proceedings or investigations pending as to Borrower, that constitutes a Material Adverse Effect as of the Closing Date;
4.1.8 all of the representations and warranties of the Public Parties set forth in Section 5.1 above Borrower under this Agreement shall be true and correct as of the Closing Date as if made on the Closing Date;
(ii) No event of default beyond any applicable notice 4.1.9 Borrower shall be in compliance with all the terms and cure periods on the part provisions of the Public Parties has Loan Documents, and no Default or Event of Default shall have occurred and is continuing hereunder as of the Closing Datebe continuing;
(iii) The Title Company is irrevocably committed 4.1.10 Agent shall have completed its independent business and legal due diligence, including but not limited to issue the Title Policy financial, legal and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company insurance reviews, with results satisfactory to issue the Title Policy in accordance with the terms hereofAgent;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, 4.1.11 each Lender and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties Agent each shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of obtained satisfactory credit or other required internal approval(s) in connection with the transactions contemplated by this Agreement, including the Rental Agreement and all documents related the Loan Documents;
4.1.12 The Closing Date shall occur on or before April 30, 2010;
4.1.13 Borrower shall have established a non-interest bearing account with Agent;
4.1.14 All legal matters relating to the Project Bonds.
(b) The Public Parties’ obligation Loan Documents shall be satisfactory to consummate Sheppard, Mullin, R▇▇▇▇▇▇ & H▇▇▇▇▇▇ LLP, legal counsel to Union Bank N.A. in all of its capacities hereunder. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 4.1, the Closing is expressly conditioned upon terms of this Section 4.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 4.1 has been complied with to Agent's and Lenders' satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required specifically waived in a writing by Section 3.6(c) hereof to be paid on or prior to the Closing; andLenders.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 1 contract
Conditions Precedent to Closing. As a condition to Bank's obligation to close and fund the Loan and to proceed with the transactions contemplated herein, Borrower, at its expense, shall have satisfied, fulfilled or provided, to Bank's sole satisfaction, at or before the date hereof all of the conditions and items set forth below unless the satisfaction, fulfillment or provision thereof shall have been waived by Bank:
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver No portion of the following:Property shall have been damaged by fire or other casualty and not repaired to the condition immediately prior to such casualty, and no condemnation or taking of the Property or any portion thereof shall be pending or threatened;
(b) Bank shall have received all duly executed, and acknowledged if necessary, Bank Loan Documents, Borrower Documents and Collateral Documents, including originals of all of the Collateral Notes and all amendments and modification thereto, and all other documents to be delivered and/or executed by third parties shall have been delivered and/or executed, and all of the same shall be in form and substance acceptable to Bank;
(c) The security interests in all personal property described in the Collateral Documents shall have been, subject to recording of any financing statements, duly perfected and shall constitute valid and enforceable first priority liens and security interests in such property;
(d) A Loan Fee in the amount of $10,000 shall have been paid to Bank;
(e) No Event of Default or Conditional Default shall have occurred and be continuing under this Agreement or any of the other Bank Loan Documents;
(f) No default shall have occurred and be continuing under any of the Senior Loan Documents or any of the Tenant Leases;
(g) Bank shall have received the most recent financial statements of Borrower as required by Section 7.1;
(h) Bank shall have received a written opinion or opinions of counsel to Borrower addressed to Bank in form and scope satisfactory to Bank and its counsel;
(i) Bank shall have received or be reimbursed for all of Bank's reasonable out-of-pocket expenses incurred in connection with the Loan, including, but not limited to, the reasonable fees and expenses of Bank's legal counsel;
(j) All of the representations and warranties of the Public Parties Borrower as set forth in Section 5.1 above Article VIII hereof shall be true true, correct and correct as of the Closing Date as if made on the Closing Dateaccurate in all material respects;
(iik) No event of default beyond any applicable notice Bank shall have received, reviewed and cure periods on approved the part of the Public Parties has occurred and is continuing hereunder as of the Closing DateCollateral Loan Documents;
(iiil) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties Bank shall have delivered any documents reasonably requested by the Title Company in order received commitments for the Title Company to issue the Title Policy in accordance with the terms hereofPolicies;
(ivm) The Public Parties Bank shall have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform received and reviewed all of the Public Parties’ respective obligations hereunder remain available documents in all respects as connection with the acquisition of the applicable Closing Date, to the extent not previously expendedCollateral Loan Documents by Borrower;
(vn) There is no litigation pending or threatened with respect Borrower and, if necessary, each of the Collateral Borrowers, shall have executed and delivered to Bank letters addressed to each of the Senior Lenders and/or the Tenants, as the case may be, directing payment to Bank of all sums to be paid by the Tenants under the Tenant Leases, subject to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability rights of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 daysSenior Lenders; and
(viio) The Company and the Public Parties Bank shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary received and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement reviewed such other materials and all documents related to the Project Bondsas Bank may reasonably require.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 1 contract
Sources: Loan Agreement (DVL Inc /De/)
Conditions Precedent to Closing. The Lender has entered into this Bond Purchase Agreement in reliance upon the Authority’s representations and agreements herein and the performance by the Authority of its obligations hereunder, both as of the date hereof and as of the date of Closing. The Lender’s obligations under this Bond Purchase Agreement are and shall be subject to the following further conditions:
(a) The Company’s obligation at the time of Closing, the Documents and the Bond shall have been duly executed and delivered by the parties thereto and shall be in full force and effect and the Documents and the Bond shall not have been amended, modified or supplemented, except as may have been agreed to consummate in writing by the Closing is expressly conditioned upon Lender, and the satisfaction or waiver Authority and the County shall have duly adopted and there shall be in full force and effect such resolutions as, in the opinion of Sands ▇▇▇▇▇▇▇▇ PC, Richmond, Virginia, Bond Counsel, shall be necessary in connection with the transactions contemplated hereby and thereby;
(b) at the Closing, the Lender shall receive in addition to the Bond and the Documents, the following:
(1) (A) the approving opinion, dated the date of Closing, in form and substance satisfactory to the Lender, of Bond Counsel (including an opinion that the Bond is “bank qualified”); and (B) the opinion of the County Attorney and of Authority Counsel, in the forms attached hereto as Exhibits B and C, with such changes in such opinion as Bond Counsel and the Lender shall approve;
(2) Such additional legal opinions, certificates, proceedings, instruments, and other documents, as the Lender or Bond Counsel may reasonably request to evidence (A) compliance by the Authority with legal requirements relating to the issuance of the Bond, or the representations set forth in the Tax and Nonarbitrage Certificate, (B) the truth and accuracy, as of the date of Closing, of all representations herein contained, and (C) the due performance or satisfaction by the Authority and the County at or prior to such date of all agreements then to be performed and all conditions then to be satisfied as contemplated under this Bond Purchase Agreement; and
(3) Resolutions adopted by the Authority on October , 2022 (the "Resolution") and by the Board of Supervisors on October 11, 2022 (the "County Resolution"), each authorizing the appropriate actions for this financing as approved by Bond Counsel.
(c) From the time that the parties have entered into this Bond Purchase Agreement and the date of Closing there shall has not been:
(1) any material change in the financial condition of the County
(2) any event, court decision, proposed law or rule, decision, or case effecting tax incidents of the Bond.
(3) a national or international crisis materially affecting, in the Lender’s opinion, the market price of the Bond.
(d) Evidence that the Lease, Ground Lease and Assignment Agreement have been recorded in the County land records. If the Authority shall be unable to satisfy the conditions to the Lender’s obligations contained in this Bond Purchase Agreement or if the Lender’s obligations shall be terminated for any reason permitted by this Bond Purchase Agreement, this Bond Purchase Agreement shall terminate, and neither the Authority, nor the Lender shall have any further obligations hereunder, except that (i) All the representations and warranties of the Public Parties Authority and the County set forth in Section 5.1 above shall be true 2 and correct Section 3, respectively, herein (as of the Closing Date as if made on the Closing Date;
(iidate made) No event of default beyond any applicable notice will continue in full force and cure periods on the part of the Public Parties has occurred effect; and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability obligations of the Company County to actively construct, develop or use pay the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations expenses and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as costs set forth herein, and all other fees and expenses of the JDA as required by in Section 3.6(c) hereof to be paid on or prior to the Closing; and6 shall continue.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions Precedent to Closing. The obligations of the Parties under this Agreement shall be and are subject to fulfillment, prior to or at the Closing, of each of the following conditions:
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver Each of the following:
(i) All representations and warranties of the Public Parties set forth in Section 5.1 above contained herein shall be true and correct as at the time of the Closing Date as if such representations and warranties were made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order at such time except for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending changes permitted or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.;
(b) The Public Parties’ obligation Parties shall have performed or complied with all agreements, terms and conditions required by this Agreement to consummate be performed or complied with by them prior to or at the Closing is expressly conditioned upon the satisfaction or waiver time of the following:Closing;
(c) The Board of Directors of the Company shall unanimously approve and deliver to ▇▇▇▇▇▇▇▇ & Associates, PA (the "Escrow Agent") in escrow, resolutions with respect to: (i) No event of default beyond any applicable notice approving the Share Exchange and cure periods on the part other actions set forth herein; (ii) increasing or directing the size of the Company has occurred Company’s Board of Directors (the “Board”) to be a number of members as determined by OELC; (iii) electing individuals selected by OELC to the Board, (iv) the current members of the Board tendering their resignations as officers and is continuing directors of ALAS to be effective as of the later of the Closing DateDate or within 10 days of filing Form 14-F; and(iv) an amendment to the Company’s Certificate of Incorporation changing its name to “Excellux, Inc.”;
(iid) The Company shall prepare and deliver to OELC for review, a Form 8-K filing as required to be filed with the Securities and Exchange Commission in connection with the execution of this Agreement;
(e) The Company shall take such actions as are required such that at Closing there shall be a total of 45,000,000 shares of Common Stock issued after giving effect to the acquisition of the OELCs Shareholders and their designees of 33,000,000 shares of the Common Stock as set forth on OELC Disclosure Schedule 1.1.
(f) The Company shall prepare and deliver to OELC for review, a Schedule 14-F filing to be filed with the Commission on the Closing date;
(g) The Company shall deliver letters of resignation of its current officers and directors to be effective ten (10) days following the filing of the Schedule 14-F;
(h) The Company shall have paid all fees and expenses delivered deliver to the Escrow Agent a total of 33,000,000 shares of Common Stock of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior Company for delivery to the Closing; and.OELCs shareholders and their designees;
(iiii) The Company shall use its reasonable best efforts to prepare and complete the Public Parties shall have agreed upon the form of all customary documentsdocuments necessary to be filed with local, including without limitation the Definitive Documents, necessary state and reasonable for the consummation of federal authorities to consummate the transactions contemplated by this Agreementhereby, including a Schedule 14C Information Statement or 14A Proxy Statement as to the Rental amendment to the Articles of Amendment to Certificate of Incorporation (the “Articles of Amendment”) as required to effectuate the terms and conditions of this Agreement and all documents related clear comments with the SEC as to the Project Bonds.same as may be required; and
Appears in 1 contract
Conditions Precedent to Closing. The obligation of the Lenders to make Advances hereunder comprising the initial Borrowing shall be subject to the conditions precedent that the Facility Agent shall have received on or before the Closing Date the following, each in form and substance satisfactory to the Facility Agent:
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver each of the following:Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(ib) All representations true and warranties complete copies of the Public Parties set forth in Section 5.1 above shall be true and correct as Constituent Documents of the Closing Date Borrower and the Collateral Manager as if made in effect on the Closing Date;
(iic) No event of default beyond any applicable notice true and cure periods on the part complete copies certified by a Responsible Officer of the Public Parties has occurred Borrower of all Governmental Authorizations, Private Authorizations and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder Governmental Filings (other than litigation relating the UCC financing statements to development or permitting of the Projectbe filed pursuant to clause (f) below), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (includingif any, without limitation, permitting), as described herein; provided that required in connection with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement;
(d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, including the Rental (ii) as to its resolutions or other action of its board of directors or members or manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all documents related material respects as of the Closing Date (except to the Project Bondsextent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) to the best of its knowledge, no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(g) copies of proper financing statements, amendments, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor);
(h) legal opinions (addressed to each of the Secured Parties and DBRS) of (i) Dechert LLP, counsel to the Borrower and the Collateral Manager and (ii) ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request;
(i) evidence satisfactory to it that all of the Covered Accounts shall have been established; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect;
(j) evidence satisfactory to it that the Borrower shall have paid (i) the fees to be received by Natixis on or prior to the Closing Date pursuant to this Agreement and each other Facility Document; (ii) the accrued fees and expenses in connection with the transactions contemplated hereby of (A) Ashurst LLP, counsel to the Facility Agent and Lenders, (B) Sidley Austin LLP, counsel to DBRS, and (C) ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent; and (iii) the fees to be received by DBRS on or prior to the Closing Date pursuant to the engagement letter dated as of April 18, 2012 between H.I.G. Whitehorse Holdings, LLC and DBRS.
(bk) The Public Parties’ obligation a Retention of Net Economic Interest Letter substantially in the form of Exhibit G;
(l) Delivery of the Collateral (including any promissory note, executed assignment agreements and copies of any other Related Documents in Microsoft Word format or portable document format (.pdf) available to consummate the Borrower for each initial Collateral Obligation) in accordance with Section 12.20 shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing is expressly conditioned upon Date, to the satisfaction or waiver effect that, in the case of each item of Collateral pledged to the followingCollateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date:
(i) No event the Borrower is the owner of default beyond such Collateral free and clear of any applicable notice and cure periods liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the part Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens;
(ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;
(iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and
(v) upon grant by the Borrower, Delivery of the Company Collateral and execution of the Account Control Agreement, the Collateral Agent has occurred a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral;
(n) the Facility Agent has received a rating letter satisfactory to the Facility Agent, delivered and is continuing signed by DBRS and confirming that the Facility has been assigned at least a “AA” rating by DBRS;
(o) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; and
(p) all legal and due diligence matters incident to this Agreement and the other Facility Documents shall be satisfactory to the Borrower, the Facility Agent, the Lenders and their respective counsel;
(q) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of the Collateral Obligations owned by the Borrower on the Closing Date:
(i) each Collateral Quality Test is satisfied;
(ii) each Coverage Test is satisfied;
(iii) the Advance Rate Test is satisfied;
(iv) no Commitment Shortfall exists; and
(iiv) The Company shall have paid all fees and expenses of the Project Bonds as set forth hereinwith respect to any Collateral Obligation with a Credit Estimate, and all other fees and expenses of the JDA as required such Credit Estimate has been assigned by Section 3.6(c) hereof to be paid on or DBRS within one year prior to the Closing; andClosing Date.
(iiir) The Company and evidence that the Public Parties shall have agreed upon Borrower has directed the form Collateral Agent to deposit the Closing Expense Account Amount into the Closing Expense Account for use pursuant to Section 8.12;
(s) a certificate of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation a Responsible Officer of the transactions contemplated Borrower or the Collateral Manager, dated as of the Closing Date, specifying the Applicable Row Level to be in effect for purposes of the Matrix; and
(t) a certificate of a Responsible Officer of the Collateral Manager, dated as of the Closing Date, certifying that each Collateral Obligation owned by this Agreement, including the Rental Agreement and all documents related to Borrower as of the Project BondsClosing Date satisfies the requirements of the definition of “Collateral Obligation”.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (WhiteHorse Finance, LLC)
Conditions Precedent to Closing. (a) The Company’s Purchaser's obligation under this Agreement to consummate purchase the Closing Premises is expressly conditioned upon subject to the satisfaction or waiver fulfillment of each of the following:following conditions, subject, however, to the provisions of Section 9(c):
(i) All Each of the material representations and warranties of the Public Parties set forth in Section 5.1 above Seller contained herein shall be true true, accurate and correct in all material respects as of the Closing Date as if made on (subject to the Closing Dateprovisions of Section 7(a)(iv));
(ii) No event of default beyond any applicable notice and cure periods on Title to the part of Premises shall be subject to no exceptions other than the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties Permitted Encumbrances. Seller shall have delivered any all the documents reasonably requested required to be executed by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties Seller and other items required pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available 10, and shall have performed in all material respects as of the applicable Closing Dateall other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to the extent not previously expended;
(v) There is no litigation pending be performed or threatened complied with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on Seller at or prior to the Closing; and.
(iii) The Company and the Public Parties Seller shall have agreed upon delivered all the form documents to be executed by Seller set forth in Section 10.
(b) Seller's obligation under this Agreement to sell the Premises to Purchaser is subject to the fulfillment of each of the following conditions, subject, however to the provisions of Section 9(c):
(i) Each of the material representations and warranties of Purchaser contained herein shall be true, accurate and correct in all customary documentsmaterial respects as of the Closing Date (subject to the provisions of Section 7(b)(ii));
(ii) Purchaser shall have delivered the funds required hereunder and all the documents to be executed by Purchaser set forth in Section 11; and
(iii) Purchaser shall have performed in all material respects all other covenants, including without limitation undertakings and obligations, and complied in all material respects with all conditions required by this Agreement to be performed or complied with by Purchaser at or prior to the Definitive DocumentsClosing.
(c) In the event that any condition contained in Section 9(a) or (b) is not satisfied, necessary the party entitled to the satisfaction of such condition as a condition to its obligation to close title hereunder shall have as its sole remedy hereunder the right to elect to (i) waive such unsatisfied condition whereupon title shall close as provided in this Agreement or (ii) terminate this Agreement or (iii) if such failure of a condition is the result of a breach or default by the other party under this Agreement, exercise such other remedies as are permitted by this Agreement. In the event such party elects to terminate this Agreement, this Agreement shall be terminated and reasonable neither party shall have any further rights, obligations or liabilities hereunder, except for the consummation of the transactions contemplated Surviving Obligations, and except for such other remedies as are permitted by this Agreement, including and except that if Purchaser terminates this Agreement because a condition contained in Section 9(a) is not satisfied, then Purchaser shall be entitled to a return of the Rental Agreement Deposit, and all documents related accrued interest thereon. Nothing contained in this Section 9(c) shall be construed so as to bestow any right of termination upon a party for the failure of a condition to be satisfied unless such party is expressly entitled to the Project Bondssatisfaction of such condition as provided in Section 9(a) or (b).
Appears in 1 contract
Sources: Sale Purchase Agreement (Readers Digest Association Inc)
Conditions Precedent to Closing. (a) The Company’s obligation All obligations hereunder of Seller are subject, at the sole option of Seller, to consummate the fulfillment prior to or at the Closing is expressly conditioned upon the satisfaction or waiver of each and every one of the followingfollowing conditions:
(i) All of the agreements and covenants contained in this Agreement that are to be complied with, satisfied and performed by Buyer on or before the Closing Date shall have been complied with, satisfied and performed.
(ii) All of the representations and warranties of the Public Parties set forth made by Buyer in Section 5.1 above this Agreement shall be true and correct in all material respects both on and as of the Closing Date as if made date of this Agreement and on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;.
(iii) The Title Company is irrevocably committed Buyer shall deliver at the Closing to issue Seller all of the Title Policy payments and the Public Parties have delivered any documents reasonably requested by the Title Company referred to in order for the Title Company to issue the Title Policy in accordance with the terms Subsection 8(a) hereof;.
(iv) The Public Parties have provided written confirmation No suit, action, or proceeding shall be instituted before any court or governmental agency or other body to restrain or prevent the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Datetransaction contemplated hereunder, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation nor shall any governmental investigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including Agreement have been commenced and not resolved by the Rental Agreement and all documents related to the Project BondsClosing Date.
(b) The Public Parties’ obligation All obligations of Buyer under this Agreement are subject, at the sole option of Buyer, to consummate the fulfillment prior to or at the Closing is expressly conditioned upon the satisfaction or waiver of each and every one of the followingfollowing conditions:
(i) No event of default beyond any applicable notice and cure periods on the part All of the Company has occurred agreements and is continuing covenants contained in this Agreement that are to be complied with, satisfied and performed by Seller on or before the Closing Date shall have been complied with, satisfied and performed.
(ii) All of the representations and warranties made by Seller in this Agreement or in any other agreement, certificate, financial statement, instrument or document furnished or to be furnished to Buyer shall be true and correct in all material respects both on and as of the date of this Agreement and on and as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company business and properties of Seller shall not have been materially adversely affected in any way, whether by fire, casualty, act of God or otherwise.
(iv) Seller shall deliver at the Public Parties Closing to Buyer all of the documents referred to in Subsection 8(b) hereof.
(v) No suit, action, or proceeding shall have agreed upon be instituted before any court or governmental agency or other body to restrain or prevent the form of all customary documentstransaction contemplated hereunder, including without limitation the Definitive Documents, necessary and reasonable for the consummation of nor shall any governmental investigation relating to the transactions contemplated by this AgreementAgreement have been commenced and not resolved by the Closing Date.
(vi) A court order, including acceptable to the Rental Buyer in its sole discretion, issued by the United States Bankruptcy Court for the Western District of Washington approving this Agreement and all documents related the action contemplated herein, in Chapter 11 Case Number 12-10808-MLB.
(vii) Receipt of a copy of a Confirmed Plan of Reorganization, acceptable to the Project BondsBuyer, issued by the United States Bankruptcy Court for the Western District of Washington in Chapter 11 Case Number 12-10808-MLB.
Appears in 1 contract
Sources: Asset Purchase Agreement
Conditions Precedent to Closing. (a) The Company’s obligation obligations of Buyer hereunder are, at its option, subject to consummate satisfaction or waiver, at or prior to the Closing is expressly conditioned upon the satisfaction or waiver Date, of each of the followingfollowing conditions, provided that the condition requiring the FCC’s initial grant of the Assignment Application cannot be waived at the Closing by either Party:
(i) All The FCC shall have granted the Assignment Application without any provision or condition adverse to the License, the Partial License or Buyer and such consent shall be in full force and effect.
(ii) To the extent that any Liens exist or have existed with respect to the Partial License, Seller shall have delivered evidence to Buyer that such Liens have been released.
(iii) No suit, action, claim or governmental proceeding shall be pending against, and no order, decree or judgment of any court, agency or other governmental authority shall have been rendered against, any Party hereto that would render it unlawful, as of the Closing Date, to effectuate the transactions contemplated by this Agreement in accordance with its terms.
(iv) The representations and warranties of the Public Parties set forth Seller made in Section 5.1 above this Agreement shall be true and correct on and as of the Closing Date as if made on and as of that date. All of the terms, covenants and conditions to be complied with and performed by Seller under this Agreement on or prior to the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder Date shall have been complied with or performed in all material respects. Seller shall have delivered to Buyer a duly executed certificate, dated as of the Closing Date;
(iii) The Title Company is irrevocably committed , in form and substance reasonably satisfactory to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation Buyer, certifying to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all satisfaction of the Public Parties’ respective obligations hereunder remain available conditions set forth in all respects as of the applicable Closing Date, to the extent not previously expended;this Section 4.
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties Seller shall have agreed upon delivered to Buyer an instrument of sale and assignment in the form of all customary documentsExhibit A hereto and other documents and instruments as Buyer or its counsel may reasonably request, including without limitation the Definitive Documentsin each case, necessary and reasonable for the consummation of the transactions contemplated duly executed by this Agreement, including the Rental Agreement and all documents related to the Project BondsSeller.
(b) The Public Parties’ obligation obligations of Seller hereunder are, at its option, subject to consummate satisfaction, at or prior to the Closing is expressly conditioned upon the satisfaction or waiver Date, of each of the followingfollowing conditions:
(i) The FCC shall have granted the Assignment Application without any conditions adverse to the License, the Partial License or Seller and such consent shall be in full force and effect.
(ii) No event suit, action, claim or governmental proceeding shall be pending against, and no order, decree or judgment of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing court, agency or other governmental authority shall have been rendered against, any Party hereto that would render it unlawful, as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of , to effectuate the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required transactions contemplated by Section 3.6(c) hereof to be paid on or prior to the Closing; andthis Agreement in accordance with its terms.
(iii) The Company representations and warranties of Buyer made in this Agreement shall be true and correct on and as of the Public Parties Closing Date as if made on and as of that date. All of the terms, covenants and conditions to be complied with and performed by Buyer under this Agreement on or prior to the Closing Date shall have agreed upon been complied with or performed in all material respects. Buyer shall have delivered to Seller a duly executed certificate, dated as of the Closing Date, in form and substance reasonably satisfactory to Seller, certifying to the satisfaction of all customary documentsthe conditions set forth in this Section 4(b)(ii).
(iv) No suit, including without limitation action, claim or governmental proceeding shall be pending against, and no order, decree or judgment of any court, agency or other governmental authority shall have been rendered against, any Party hereto that would render it unlawful, as of the Definitive DocumentsClosing Date, necessary and reasonable for the consummation of to effectuate the transactions contemplated by this Agreement, including Agreement in accordance with its terms.
(v) Buyer shall have paid the Rental Agreement and all documents related to the Project BondsPurchase Price.
Appears in 1 contract
Conditions Precedent to Closing. The obligations of the Banks to make Advances hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 8.01):
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction Administrative Agent (or waiver of the following:
its counsel) shall have received from each party hereto either (i) All representations and warranties a counterpart of the Public Parties set forth in Section 5.1 above shall be true and correct as this Agreement signed on behalf of the Closing Date as if made on the Closing Date;
such party or (ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation evidence satisfactory to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all Administrative Agent (which may include telecopy transmission of the Public Parties’ respective obligations hereunder remain available in all respects as a signed signature page of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds) that such party has signed a counterpart of this Agreement.
(b) The Public Parties’ obligation Administrative Agent shall have received a favorable written opinion (addressed to consummate the Administrative Agent and the Banks and dated the Closing is expressly conditioned upon the satisfaction or waiver Date) of the following:
(i) No event Jose▇▇ ▇. ▇▇▇▇▇▇, ▇▇., ▇▇unsel for the Borrower, substantially in the form of default beyond any applicable notice Exhibit C-1 and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) Morg▇▇ ▇▇▇▇▇ & ▇ockius LLP, New York counsel for the Borrower, substantially in the form of Exhibit C-2, in each case covering such other matters relating to the Borrower, the Loan Papers or the Transactions as the Majority Banks shall reasonably request. The Company Borrower hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have paid received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, the authorization of the Transactions and any other legal matters relating to the Borrower, the Loan Papers or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 3.02.
(e) The Administrative Agent shall have received all fees and expenses of the Project Bonds as set forth herein, other amounts due and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid payable on or prior to the Closing; andClosing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(iiif) All consents and approvals required to be obtained from any governmental authority or other Person in connection with the Transactions shall have been obtained, except to the extent that failure to obtain any such consent or approval, individually or in the aggregate, could not reasonably be expected to have a material adverse effect on the business, assets, operations, financial condition or prospects of the Borrower and its Subsidiaries, taken as a whole.
(g) The Company and the Public Parties Previous Credit Agreements shall have agreed been terminated and all amounts outstanding thereunder shall have been or shall simultaneously be repaid (or in the case of banker's acceptances listed on Schedule V hereto, shall be deemed to have been issued under the Credit Agreement described in clause (b) of the definition of "Other Credit Agreements"), except that the Credit Agreement referred to in clause (d)(i) of the definition of Previous Credit Agreements shall be terminated and all amounts outstanding thereunder shall be repaid on or prior to December 1, 1998.
(h) There shall not be any litigation, administrative proceedings or other legal or regulatory actions pending or threatened which individually or in the aggregate (i) prevent or impose materially adverse conditions upon any of the form Transactions or (ii) could reasonably be expected to have a material adverse effect on the business, assets, operations, financial condition or prospects of all customary documentsthe Borrower and its Subsidiaries, including without limitation the Definitive Documents, necessary and reasonable for the taken as a whole.
(i) The consummation of the transactions contemplated by this AgreementTransactions shall not (i) violate any applicable law, including statute, rule or regulation or (ii) conflict with, or result in a default under, or any right to terminate or renegotiate, any material Debt or contract of the Rental Agreement Borrower or any of its Subsidiaries.
(j) The Other Credit Agreements shall have become or shall simultaneously become effective. The Administrative Agent shall notify the Borrower and all documents related the Banks of the Closing Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Banks to make Advances hereunder shall not become effective unless each of the Project Bondsforegoing conditions is satisfied (or waived pursuant to Section 8.01) at or prior to 3:00 p.m., New York City time, on November 4, 1998 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Sources: 364 Day Competitive Advance/Revolving Credit Agreement (Union Pacific Resources Group Inc)
Conditions Precedent to Closing. SECTION 7.1. Conditions to the Company's Obligations. The obligations of the Company hereunder required to be performed on the Closing Date shall be subject, at its election, to the satisfaction or waiver (which waiver, if so requested by the Purchaser, shall be made in writing), at or prior to the Closing, of the following conditions:
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) All representations and warranties of the Public Parties set forth Purchaser contained in Section 5.1 above this Agreement shall have been true and correct when made and shall be true and correct in all material respects (except those representations and warranties that are specifically qualified as to materiality in accordance with their terms, which shall be true and correct in all respects) on and as of the Closing Date with the same force and effect as if though made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation Purchaser shall have performed all obligations and agreements, and complied with all covenants, contained in the Transaction Documents, to consummate be performed and complied with by the Purchaser at or prior to the Closing is expressly conditioned upon the satisfaction or waiver of the following:Date.
(ic) No event of default beyond any applicable notice and cure periods on the part of The Purchaser shall have delivered to the Company has occurred and is continuing a certificate, executed by it or on its behalf by a duly authorized representative, dated as of the Closing Date; and, certifying that each of the conditions specified in this Section 7.1 has been satisfied with respect to the Purchaser.
(iid) The Purchaser shall have performed all obligations and agreements, and complied with all covenants, contained in this Agreement, to be performed and complied with by it at or prior to the Closing Date.
(e) All governmental and regulatory approvals and clearances and all third-party Consents necessary for the consummation by the Purchaser of the transactions contemplated by the Transaction Documents shall have been obtained and shall be in full force and effect.
(f) The Company shall have paid all fees and expenses received payment of the Project Bonds Purchase Price as set forth provided pursuant to Section 2.2(b)(i) herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iiig) The Company and Any modification to the Public Parties terms of the Company's Senior Credit Documents, which modification adversely affects the Company, shall have agreed upon been approved by the form Company.
(h) Any modification to the terms of all customary documentsany of the Management Agreements, including without limitation which modification increases the Definitive Documentseconomic benefit of such agreement to the executive officer party thereto, necessary shall have been approved by a majority of the disinterested members of the Company's Board of Directors.
(i) There shall be no action continuing, and reasonable for no statute, rule, regulation, judgment, administrative interpretation, order or injunction shall have been enacted, promulgated, entered or enforced, and there shall be no action deemed applicable to the sale of the Shares to the Purchaser, which would (i) make illegal or otherwise restrict or prohibit the consummation of the sale of the Shares to the Purchaser, or (ii) restrict the ability of the Purchaser, or render the Purchaser unable, to effect the purchase of the Shares from the Company.
(j) The Company shall have received such other certificates, instruments and documents in furtherance of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bondshereby as it may reasonably request.
Appears in 1 contract
Conditions Precedent to Closing. 14.1 The obligations of Contributor to deliver an executed and acknowledged Assignment of Contributor's Interest, and the Owners to provide insurable title to the Property, and to perform the other covenants and obligations to be performed by the Owners on the Closing Date shall be subject to the following conditions (all or any of which may be waived, in whole or in part, by the Owners):
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) All representations and warranties of made by the Public Parties set forth in Section 5.1 above Company herein shall be true and correct in all material respects with the same force and effect as of the Closing Date as if though such representations and warranties had been made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iiib) The Title the Company is irrevocably committed shall have executed and delivered to issue Contributor all of the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order provided herein for the Title Company to issue the Title Policy in accordance with the terms hereofsaid delivery;
(ivc) The Public Parties there shall not have provided written confirmation to been any material adverse change in the Company between the date hereof and Closing. Contributor acknowledges that any decrease, regardless of amount, in the price of the Common Stock shall not be considered a material adverse change. The provisions of this Section 14.1(c) shall be merged into the Company's delivery of the Certificates to Contributor and the Unit Holders; and
(d) the Company shall have performed all funds allocated material covenants and material obligations undertaken by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available Company herein in all respects as of and complied with all material conditions required by this Agreement to be complied with or performed by it on or before the applicable Closing Date, to the extent not previously expended;.
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their 14.2 The obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use deliver the Project, then this closing condition Certificates to the Unit Holders and the Company's obligation to perform the other covenants and obligations to be performed by the Company on the Closing Date shall be deemed satisfied with respect subject to such pending the following conditions (all or threatened litigation;any of which may be waived, in whole or in part, by the Company):
(via) All federal authorizations the representations and warranties made by the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary Owners herein shall be true and correct in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance all material respects with the Current Site Plan have same force and effect as though such representations and warranties had been obtained, the Wetland Mitigation credits have been purchased, made on and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date;
(b) the Owners shall have performed all material covenants and material obligations undertaken by the Owners herein in all respects and complied with all material conditions required by this Agreement to be complied with or performed by any of them on or before the Closing Date;
(c) the Title Company is unconditionally prepared to issue to the Company a Title Policy meeting the requirements set forth in Section 4 hereof for an "insurable title";
(d) the Owners shall have executed and delivered to the Company all of the documents provided for herein for said delivery;
(e) the Property shall be in compliance in all material respects with all statutes, ordinances, rules, regulations, orders, codes, directives or requirements of all Governmental Authorities, and Environmental Laws, affecting the Property;
(f) the Reconstituted Partnership shall have closed the Replacement Loan;
(g) all of the representations and warranties made in Section 5.1 shall be true and complete, without regard to knowledge, in all material respects as though such representations and warranties had been made on and as of the Closing Date. In the event that any of said representations and warranties are not true and complete, without regard to knowledge, in all material respects, then the Company may, at its election, terminate this Agreement; and
(iih) The Company the Property shall have paid all fees be in compliance with the San Francisco, California Public Works Code art. 20, ss.ss.1001-1015 ("PWC art. 20"), Cal. Health & Safety Code ss.25359.7, the California ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇-▇▇▇▇▇▇ Hazardous Substance Account Act, the Cal. Health & Safety Code ss.ss.25915-25919.7, any regulations promulgated thereunder and expenses of any amending or successor legislation and regulations now or hereafter existing with respect to the Project Bonds as Property. In the event that the Property is not in compliance with PWC art. 20, Cal. Health & Safety Code ss.25359.7, the California ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇-▇▇▇▇▇▇ Hazardous Substance Account Act, the Cal. Health & Safety Code ss.ss.25915-25919.7, any regulations promulgated thereunder and any amending or successor legislation and regulations now or hereafter existing with respect to the Property, then the Company's sole remedies shall be limited to either terminating this Agreement or waiving the compliance requirements set forth herein. If this Agreement is so terminated, this Agreement shall be rendered null and all other fees void and expenses of the JDA as required by Section 3.6(c) hereof to be paid on no further force or prior effect and neither party shall have any further liability or obligation to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form other under or by virtue of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including . In the Rental Agreement and all documents related event that the Property is not subject to the Project Bondsprovisions of PWC art. 20, Cal. Health & Safety Code ss.25359.7, the California ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇-▇▇▇▇▇▇ Hazardous Substance Account Act, the Cal. Health & Safety Code ss.ss.25915-25919.7, any regulations promulgated thereunder, then G&G shall, at its sole cost and expense, provide to the Company an affidavit stating that the Property is not subject to the provisions of PWC art. 20, Cal. Health & Safety Code ss.25359.7, the California ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇-▇▇▇▇▇▇ Hazardous Substance Account Act, the Cal. Health & Safety Code ss.ss.25915-25919.7, any regulations promulgated thereunder.
Appears in 1 contract
Sources: Contribution and Exchange Agreement (Mack Cali Realty Corp)
Conditions Precedent to Closing. (a) The Company’s obligation effectiveness of this Agreement shall be subject to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) All representations and warranties of the Public Parties set forth in Section 5.1 above shall be true and correct as of the Closing Date as if made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder following conditions precedent as of the Closing Date:
(a) all conditions precedent to closing under Section 4.01 of the Note Purchase Agreement shall have been fulfilled;
(iiib) The Title Company is irrevocably committed all conditions precedent to issue the Title Policy Depositor’s purchase and contribution of any Purchased Assets to be transferred on the Closing Date pursuant to the Loan Sale Agreement shall have been fulfilled;
(c) the Originator and the Public Parties Initial Noteholder shall have executed and delivered the Warrant Participation Agreement;
(d) the Originator shall have delivered to the Initial Noteholder a copy of the Credit and Collection Policy;
(e) the Originator, the Initial Noteholder and the Indenture Trustee shall have executed and delivered the Warrant Pledge and Security Agreement ;
(f) the Originator shall have delivered to the Initial Noteholder evidence of the amendment or partial termination, as the case may be, in form and substance reasonably satisfactory to the Initial Noteholder, of the UCC-1 financing statement previously filed with the Maryland Department of Assessments and Taxation naming Hercules Technology Growth Capital, Inc. as debtor and Alcmene Funding, L.L.C. as the secured party;
(g) the Originator shall have delivered to the Initial Noteholder copies of fully-executed amendments, in form and substance reasonably satisfactory to the Initial Noteholder, to (i) that certain Credit Agreement, dated as of April 12, 2005, among Hercules, Alcmene Funding, L.L.C. and the other lenders party thereto, and (ii) that certain Pledge and Security Agreement, dated as of April 12, 2005, by Hercules in favor of Alcmene Funding, L.L.C., together with such other amendments or terminations of security documents or other ancillary documents related to such credit agreement as the Initial Noteholder may reasonably require;
(h) the Depositor shall have taken any documents action reasonably requested by the Title Company in order for Indenture Trustee, the Title Company Issuer or the Initial Noteholder required to issue maintain or evidence the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all ownership interest of the Public Parties’ respective obligations hereunder remain available Issuer in all respects as the Purchased Assets and the security interest of the applicable Closing Date, to Indenture Trustee in the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project BondsCollateral.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Hercules Technology Growth Capital Inc)
Conditions Precedent to Closing. (a) The Company’s Note Purchaser will have no obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the followingtransactions contemplated by this Agreement unless:
(ia) All representations and warranties each of the Public Parties set forth in Section 5.1 above Basic Documents shall be true in full force and correct as of the Closing Date as if made on the Closing Date;
(ii) No event of default beyond any applicable notice effect and cure periods on the part of the Public Parties has occurred all consents, waivers and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are approvals necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement Basic Documents shall have been obtained and all documents related to the Project Bonds.shall be in full force and effect;
(b) The Public Parties’ obligation all conditions to consummate the Closing is expressly conditioned upon the satisfaction or waiver issuance of the followingNotes under the Indenture and under SECTION 2.1(b) of the Sale and Servicing Agreement shall have been satisfied and all conditions to each Advance, including the initial Advance, set forth under SECTION 6.02 hereof have been satisfied;
(c) the Note Purchaser shall have received a duly executed, authorized and authenticated Note registered in its name and stating that the principal amount thereof shall not exceed the Maximum Invested Amount;
(d) the Issuer shall have paid all fees required to be paid by it on or prior to the Restatement Effective Date, including all fees required under Section 8.05(a) hereof;
(e) the Notes purchased by the Note Purchaser hereunder shall be entitled to the benefit of the security provided in the Indenture and shall constitute the legal, valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by equitable limitations on the availability of specific remedies, regardless of whether such enforceability is considered in a proceeding in equity or at law;
(f) no Material Adverse Change shall have occurred with respect to CPS or the Issuer since December 31, 2005;
(g) the Note Purchaser shall have received:
(i) No event a duly executed and delivered original counterpart of default beyond each Basic Document (other than any applicable notice Basic Document that contemplates delivery on a date after the Restatement Effective Date), each such document being in full force and cure periods on the part effect;
(ii) certified copies of charter documents and each amendment thereto, and resolutions of the Company has occurred Board of Directors or other governing authority of each of the Issuer and the Servicer authorizing or ratifying the execution, delivery and performance of all Basic Documents to which it is continuing a party, certified by the Secretary or an Assistant Secretary of each of the Issuer and the Servicer as of the Restatement Effective Date, which certificate shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate;
(iii) a certificate of the Secretary or an Assistant Secretary of the Issuer and the Servicer, as applicable, certifying the names and the signatures of its officer or officers authorized to sign all transaction documents to which it is a party;
(iv) a certificate of a senior officer of CPS to the effect that the representations and warranties of the Seller and the Servicer in this Agreement and the other Basic Documents to which either of them is a party are true and correct as of the Restatement Effective Date, and that the Seller and the Servicer have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Restatement Effective Date;
(v) a certificate of a senior officer of the Issuer to the effect that the representations and warranties of the Issuer and the Purchaser in this Agreement and the other Basic Documents to which either of them is a party are true and correct as of the Restatement Effective Date and that the Issuer and the Purchaser have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Restatement Effective Date;
(vi) legal opinions (including opinions relating to true sale, non-consolidation, UCC, enforceability and corporate matters) in form and substance satisfactory to the Note Purchaser, which legal opinions may be "bring-down" letters of legal opinions delivered by counsel to the Issuer, the Purchaser, the Servicer and the Seller on the Original Closing Date;
(vii) evidence satisfactory to the Note Purchaser of completion of all necessary UCC filings and search reports;
(viii) payment of Note Purchaser's reasonable out-of-pocket fees and expenses in accordance with SECTION 3.01(c) hereof;
(ix) copies of certificates or other evidence from the Secretary of State or other appropriate authority of the States of Delaware and California, evidencing the good standing of the Issuer and the Servicer in the States of Delaware and California, in each case, dated no earlier than 15 days prior to the Restatement Effective Date; and
(iix) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all such other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation opinions and information as the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project BondsNote Purchaser may reasonably request.
Appears in 1 contract
Sources: Note Purchase Agreement (Consumer Portfolio Services Inc)
Conditions Precedent to Closing. (a) The Company’s Purchaser's obligation under this Agreement to consummate purchase the Closing Premises is expressly conditioned upon subject to the satisfaction or waiver fulfillment of each of the following:following conditions, subject, however, to the provisions of Section 10(c):
(i) All The representations and warranties of the Public Parties set forth in Section 5.1 above Seller contained herein shall be true true, accurate and correct as of the Closing Date except to the extent they relate only to an earlier date (subject to the provisions of Section 8(a)(ii));
(ii) Seller shall be ready, willing and able to deliver title to the Premises in accordance with the terms and conditions of this Agreement; and
(iii) Seller shall have delivered all the documents and other items required pursuant to Section 11, and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by the Seller at or prior to the Closing.
(b) Seller's obligation under this Agreement to sell the Premises to Purchaser is subject to the fulfillment of each of the following conditions, subject, however to the provisions of Section 10(c):
(i) the representations and warranties of Purchaser contained herein shall be true, accurate and correct as if made on of the Closing Date;
(ii) No event of default beyond any applicable notice Purchaser shall have delivered the funds required hereunder and cure periods on all the part of documents to be executed by Purchaser set forth in Section 12 and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by Purchaser at or prior to the Public Parties has occurred and is continuing hereunder as of the Closing DateClosing;
(iii) The Title Company all consents and approvals of governmental authorities and parties to agreements to which Purchaser is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested a party or by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company which Purchaser's assets are bound that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened are required with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement shall have been obtained and all documents related copies thereof shall have been delivered to Seller at or prior to the Project Bonds.Closing;
(biv) The Public Parties’ obligation on or prior to consummate Closing Date, (A) Purchaser shall not have applied for or consented to the appointment of a receiver, trustee or liquidator for itself or any of its assets unless the same shall have been discharged prior to the Closing is expressly conditioned upon Date, and no such receiver, liquidator or trustee shall have otherwise been appointed, unless same shall have been discharged prior to the satisfaction Closing Date, (B) Purchaser shall not have admitted in writing an inability to pay its debts as they mature, (C) Purchaser shall not have made a general assignment for the benefit of creditors, (D) Purchaser shall not have been adjudicated a bankrupt or waiver insolvent, or had a petition for reorganization granted with respect to Purchaser, (E) Purchaser shall not have filed a voluntary petition seeking reorganization or an arrangement with creditors or taken advantage of any bankruptcy, reorganization, insolvency, readjustment or debt, dissolution or liquidation law or statute, or filed an answer admitting the material allegations of a petition filed against it in any proceedings under any such law, or had any petition filed against it in any proceeding under any of the following:
(i) No event of default beyond any applicable notice and cure periods on foregoing laws unless the part of the Company has occurred and is continuing as of same shall have been dismissed, cancelled or terminated prior to the Closing Date; and
(iiv) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and[INTENTIONALLY DELETED].
(iiic) The Company and In the Public Parties event that any condition contained in Section 10(a) or (b) is not satisfied, the party entitled to the satisfaction of such condition as a condition to its obligation to close title hereunder shall have agreed upon as its sole remedy hereunder the form of all customary documents, including without limitation right to elect to (i) waive such unsatisfied condition whereupon title shall close as provided in this Agreement or (ii) terminate this Agreement. In the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by event such party elects to terminate this Agreement, including this Agreement shall be terminated, the Rental Agreement and all documents related Fund shall be returned to the Project BondsPurchaser, except if the Purchaser (and not the Seller) is otherwise in material default hereunder, and neither party shall have any further rights, obligations or liabilities hereunder, except for the Surviving Obligations. Nothing contained in this Section 10(c) shall be construed so as to bestow any right of termination upon a party for the failure of a condition to be satisfied unless such party is expressly entitled to the satisfaction of such condition as provided in Section 10(a) or (b).
Appears in 1 contract
Conditions Precedent to Closing. Lenders shall not be obligated to make any Loan, or to take, fulfill, or perform any other action under this Agreement, until the following conditions have been satisfied to Agent’s reasonable satisfaction or waived in writing by Agent:
4.1.1 Agent shall have received:
(a) The Companyoriginals of the documents set forth on Schedule 1.1h (Schedule of Documents), each duly executed by the appropriate parties, together with such other assurances, certificates, documents or consents related to the foregoing as Agent and/or Lenders reasonably may require, all in form and substance satisfactory to Agent and Lenders;
(b) such documentation as Agent may reasonably require to establish the due organization, valid existence and good standing of Borrower, its qualification to engage in business in each material jurisdiction in which it is engaged in business or required to be so qualified, its authority to execute, deliver and perform the Loan Documents to which it is a party, the identity, authority and capacity of each Authorized Signatory thereof authorized to act on its behalf, including certified copies of articles of organization and amendments thereto, bylaws and operating agreements and amendments thereto, certificates of good standing and/or qualification to engage in business, tax clearance certificates, certificates of corporate resolutions, incumbency certificates, certificates of Authorized Signatory, and the like;
(c) a list of all of Borrower’s obligation Material Contracts and a copy of such Material Contracts requested by Agent;
(d) a copy of all insurance certificates or other evidence of insurance for the Collateral;
(e) originals of favorable written opinions, dated as of the date hereof, of independent and internal counsel to the Borrower, addressed to Agent and Lenders (and their respective participants and assigns) and otherwise in form and substance satisfactory to Agent as to such matters as Agent shall determine;
(f) copies of all consents and authorizations of, permits from or filings with, any Governmental Authority or other Person required in connection with the execution, delivery, performance or enforceability of the Loan Documents or any provision thereof and no material changes in governmental regulations affecting the Borrower, Agent or the Lenders shall have occurred;
(g) (i) a certified lien search for the State of Delaware and the State of California with respect to the Borrower and each of its Subsidiaries, (ii) an International Registry search with respect to each applicable item of Equipment; (iii) an FAA search with respect to each applicable item of Equipment, (iv) a Federal tax lien search with respect to the Borrower and each of its Subsidiaries, and any other searches as may be required by Agent; and
(h) the “chattel paper” original of each Lease, which thereafter until the Termination Date shall be held by Agent or McAfee & T▇▇▇ as Agent’s designee or such other party as Agent may designate; provided Agent shall not be liable in the event of any damage, loss or destruction of any of such documents or instruments.
4.1.2 All of the financing statements and other documentation described in Section 3.1.7 shall have been filed with the appropriate Governmental Authorities, and Agent shall hold a first priority perfected Lien in the Collateral, for the ratable benefit of Lenders, subject only to Permitted Liens.
4.1.3 With respect to all Equipment, and subject to Section 6.23, the following statements shall be true, and Agent shall have received evidence reasonably satisfactory to it (including, with respect to each item of Equipment which is eligible for registration with the International Registry, a printout of the “priority search certificate” from the International Registry showing the Equipment Owner’s ownership interest with respect to such Equipment under a contract of sale) with respect to each item of Equipment and any related Lease to the effect that:
(a) the Borrower is in compliance with the applicable requirements of the Mortgage and Applicable Law;
(b) the applicable Equipment Owner has good title under Applicable Law to such item of Equipment, free and clear of Liens other than (i) Permitted Liens and (ii) the Lien of Agent;
(c) the Borrower has completed all registrations and filings required by any Aviation Authority in such jurisdiction and Agent shall hold a first priority Lien on each item of Equipment under Applicable Law (or with respect to Assets for which a pre-filing has been made, Agent shall be the beneficiary of a second priority Lien on such Equipment, and documentation sufficient to terminate any first priority lien on such Equipment shall have been delivered to Agent or to an escrow with such documentation to be filed promptly thereafter) and has provided, or is in a position to provide, all opinions of independent counsel as required by Agent;
(d) Agent shall have received evidence reasonably satisfactory to it (including, with respect to each Cape Town Eligible Lease, a printout of the “priority search certificate” (as defined in the Regulations for the International Registry) from the International Registry relating to the Lessor’s interest in and International Interest with respect to such item of Equipment under such Lease and including, with respect to all Leases that are not Cape Town Eligible, an original, favorable written opinion of independent counsel addressed to Agent and Lenders (and their respective participants and assigns) with respect to Agent’s Lien on such item of Equipment;
(e) with respect to each item of Equipment which is eligible for registration with the International Registry, Agent shall have received a printout of the “priority search certificate” from the International Registry showing the Equipment Owner’s ownership interest with respect to such Equipment under a contract of sale; and
(f) with respect to an item of Equipment that is owned by an Owner Trustee, if any, or with respect to each Lease to a Lessee domiciled or whose chief executive office is located in a non-U.S. jurisdiction, Agent shall have received the documentation set forth in the definition of “Aviation Asset Requirements” (including, without limitation, the Owner Trustee Guaranty(ies), Owner Trustee Mortgage(s), Trust Agreement(s), and Beneficial Interest Pledge Agreement(s)).
4.1.4 No action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before any court, Governmental Authority or legislative body to enjoin, restrain or prohibit, or to obtain damages in respect of, or which is related to or arises out of, this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby or thereby and which, in any Lender’s sole judgment, would make it inadvisable to consummate the Closing is expressly conditioned upon the satisfaction transactions contemplated by this Agreement or waiver any other Loan Document;
4.1.5 No circumstance or event shall have occurred, including but not limited to any litigation, actions, suits, proceedings or investigations pending as to Borrower, that constitutes a Material Adverse Effect as of the following:Closing Date;
(i) 4.1.6 All of the representations and warranties of the Public Parties set forth in Section 5.1 above Borrower under this Agreement shall be true and correct as of the Closing Date as if made on the Closing Date;
(ii) No event of default beyond any applicable notice 4.1.7 Borrower shall be in compliance with all the terms and cure periods on the part provisions of the Public Parties has Loan Documents, and no Default or Event of Default (other than the Specified Events of Default) shall have occurred and is continuing hereunder as of the Closing Datebe continuing;
(iiia) The Title Company is irrevocably committed Agent shall have completed its independent business and legal due diligence, including but not limited to issue the Title Policy financial, legal and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company insurance reviews, with results satisfactory to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigationAgent, and (iiib) no injunctive relief has been granted by any court of competent jurisdiction if Borrower qualifies as part of such litigation which impacts a “legal entity customer” under the ability of the Company Beneficial Ownership Regulation, it shall have provided a Beneficial Ownership Certification to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigationAgent if so requested;
(vi) All federal authorizations 4.1.9 Each Lender and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties Agent each shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of obtained satisfactory credit or other required internal approval(s) in connection with the transactions contemplated by this Agreement, including the Rental Agreement and the Loan Documents;
4.1.10 Receipt of a fully-executed amended engagement letter for B. ▇▇▇▇▇’▇ engagement by Borrower, satisfactory to all documents related Lenders.
4.1.11 Borrower’s board of directors, at Borrower’s costs, shall have engaged a consultant (“Financial Advisor/Consultant”) for Borrower to report to Borrower’s board of directors, which Financial Advisor/Consultant to be selected from candidates submitted by Lenders and the terms of whose engagement and scope of work and responsibilities set forth in the engagement letter approved by Lenders.
4.1.12 All legal matters relating to the Project Bonds.
(b) The Public Parties’ obligation Loan Documents shall be satisfactory to consummate the Closing is expressly conditioned upon the satisfaction or waiver Sheppard, Mullin, R▇▇▇▇▇▇ & H▇▇▇▇▇▇ LLP, legal counsel to MUFG Union Bank, N.A., in all of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Dateits capacities hereunder; and
(ii) The Company 4.1.13 Agent shall have paid all fees received Account Control Agreements, in form and expenses substance satisfactory to Agent, for the deposit accounts maintained by Borrower (other than the Restricted Account) and Guarantor Subsidiaries. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 4.1, the terms of this Section 4.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the Project Bonds as set forth herein, conditions of this Section 4.1 has been complied with to Agent’s and all other fees and expenses of the JDA as required Lenders’ satisfaction or specifically waived in a writing by Section 3.6(c) hereof to be paid on or prior to the Closing; andLenders.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 1 contract
Conditions Precedent to Closing. (aA) The Company’s obligation Corporation's obligations to consummate carry out the Closing is expressly conditioned upon terms of this Agreement and to complete its transactions contemplated under this Agreement are subject to the fulfillment to the satisfaction or waiver of Corporation of each of the followingfollowing conditions at or prior to the Time of Closing:
(i) All representations and warranties Each of the Public Parties set forth in Section 5.1 above Members and MT LLP (collectively, the "MT LLP Group") shall be true and correct as of the Closing Date as if made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance complied with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ their respective obligations hereunder remain available covenants and agreements contained in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company MT LLP and the Members shall have paid all fees and expenses transfer, or will cause to be transferred, to Corporation one hundred percent (100%) of the Project Bonds as set forth herein, issued and all other fees and expenses outstanding Membership Interests of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the ClosingMT LLP; and.
(iii) The Company representations and warranties of MT LLP contained in this Agreement or contained in any certificates or documents delivered by any of them pursuant to this Agreement shall be completely true as if such representations and warranties had been made as of the Public Parties shall have agreed upon the form Time of all customary documents, including without limitation the Definitive Documents, necessary and reasonable Closing. The conditions set forth above are for the consummation exclusive benefit of Corporation and may be waived by Corporation in whole or in part at any time at or before the Time of Closing, as long as such conditions are waived in writing.
(B) MT LLP's obligation to carry out the terms of this Agreement and to complete the transactions contemplated by under this Agreement are subject to the fulfillment to MT LLP's satisfaction of each of the following conditions at or prior to the Time of Closing:
(i) Corporation shall have complied with all its covenants and agreements contained in this Agreement; and
(ii) The representations and warranties of Corporation contained in this Agreement or contained in any certificates or documents delivered by it pursuant to this Agreement shall be completely true and correct in all material respects as if such representations and warranties had been made by Corporation as of the Closing Date; and The conditions set forth above are for the exclusive benefit of MT LLP and may be waived by MT LLP in whole or in part at or before the Time of Closing, including the Rental Agreement and all documents related to the Project Bondsas long as such conditions are waived in writing.
Appears in 1 contract
Conditions Precedent to Closing. This Agreement shall become effective on the date on which each of the following conditions shall be satisfied:
(a) The Company’s obligation to consummate Administrative Agent shall have received the following, each dated as of the Closing is expressly conditioned upon Date (unless otherwise specified) and in such number of copies as the satisfaction or waiver of the followingAdministrative Agent shall have requested:
(i) All Executed counterparts of this Agreement from each party hereto either signed on behalf of such party or written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page to this Agreement) that such party has signed a counterpart of this Agreement;
(ii) To the extent requested by any Lender in accordance with SECTION 2.4(D), a Note for such Lender duly completed in accordance with the provisions of SECTION 2.4(D) and executed by the Borrower;
(iii) A certificate, signed by the chief executive officer or the chief financial officer of the Borrower, in form reasonably satisfactory to the Administrative Agent, certifying on behalf of the Borrower that (A) all representations and warranties of the Public Parties set forth Borrower contained in Section 5.1 above shall be this Agreement and the other Credit Documents are true and correct as of the Closing Date as if made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder in all material respects as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy , both immediately before and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation after giving effect to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all consummation of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Companytransactions contemplated hereby, (B) would have a material impact on the ability no Default or Event of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project)Default has occurred and is continuing, or and (C) otherwise materially both immediately before and adversely affects the ability of the Parties after giving effect to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, no Material Adverse Effect has occurred since December 31, 2005 and there exists no event, condition or state of facts that could reasonably be expected to have a Material Adverse Effect;
(iv) A certificate of the secretary or an assistant secretary of the Borrower, in form and substance satisfactory to the Administrative Agent, certifying (A) that attached thereto is a true and complete copy of the certificate of incorporation and all amendments thereto of the Borrower, certified as of a recent date by the Secretary of State of Delaware and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws of the Borrower, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the Rental date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors of the Borrower authorizing the execution, delivery and performance of this Agreement and all documents related the other Credit Documents to which it is a party, and as to the Project Bonds.incumbency and genuineness of the signature of each officer of the Borrower executing this Agreement or any of the other Credit Documents, and attaching all such copies of the documents described above; and
(v) the favorable opinions of ▇▇▇▇▇▇ ▇. ▇▇▇▇, General Counsel of the Borrower addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver Administrative Agent shall have received a certificate as of a recent date of the following:
good standing of each of (i) No event of default beyond any applicable notice the Borrower, and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) the Material Subsidiaries, in each case under the laws of their respective jurisdictions of organization, from the Secretary of State or Insurance Regulatory Authority (or comparable Governmental Authority) of such jurisdiction;
(c) All legal, tax, accounting, business and other matters relating to the Borrower and its Subsidiaries, documentation and corporate or other proceedings incident to the transactions contemplated hereby shall be reasonably acceptable to the Administrative Agent; all approvals, permits and consents of any Governmental Authority (including, without limitation, all relevant Insurance Regulatory Authorities) or other Persons required in connection with the execution and delivery of this Agreement shall have been obtained (without the imposition of conditions that are not reasonably acceptable to the Administrative Agent), and all related filings, if any, shall have been made, and all such approvals, permits, consents and filings shall be in full force and effect and the Administrative Agent shall have received such copies thereof as it shall have requested; all applicable waiting periods shall have expired without any adverse action being taken by any Governmental Authority having jurisdiction; and no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before, and no order, injunction or decree shall have been entered by, any court or other Governmental Authority, in each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or that is otherwise related to or arises out of, this Agreement, any of the other Credit Documents or the consummation of the transactions contemplated hereby or thereby, or that, in the opinion of the Administrative Agent, could reasonably be expected to have a Material Adverse Effect;
(d) Since December 31, 2005, there shall not have occurred any Material Adverse Effect or any event, condition or state of facts that could reasonably be expected to have a Material Adverse Effect;
(e) The Company Borrower shall have paid to the Arranger, the Administrative Agent and the Lenders all fees and expenses of the Project Bonds as set forth herein, and all required hereunder or under any other fees and expenses of the JDA as required by Section 3.6(c) hereof Credit Document to be paid on or prior to the Closing; and.
Closing Date (iiiincluding fees and expenses of counsel) The Company in connection with this Agreement and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated hereby;
(f) The Administrative Agent shall have received a Covenant Compliance Worksheet, duly completed and certified by this Agreement, including the Rental Agreement chief financial officer or treasurer of the Borrower and all documents related in form and substance satisfactory to the Project BondsAdministrative Agent, demonstrating Borrower's compliance with the financial covenants set forth in ARTICLE VI determined as of June 30, 2006 other than the computation of the financial covenant set forth in SECTION 6.3 which shall be as of the last day of the month most recently ended prior to the Closing Date;
(g) The Administrative Agent shall have received evidence satisfactory to it that, (i) all principal, interest and other amounts outstanding under the Prior Senior Credit Facility, if any, shall be repaid and satisfied in full and (ii) all commitments to extend credit under the agreements and instruments relating to the Prior Senior Credit Facility shall have been terminated; and
(h) The Administrative Agent and each Lender shall have received such other documents, certificates, opinions and instruments in connection with the transactions contemplated hereby as it shall have reasonably requested.
Appears in 1 contract
Conditions Precedent to Closing. (a) The Company’s obligation Partnership's and the REIT's obligations to consummate acquire the applicable Contributor's interest in the applicable Existing Owner in accordance with this Agreement on each Closing is expressly conditioned upon Date shall be subject to the satisfaction or waiver of the followingfollowing conditions precedent on or prior to such Closing Date:
(i) All all of the Contributors' representations and warranties made in this Agreement shall be true and correct at Closing, as if made on such date, except (x) to the extent such representations and warranties speak as of the Public Parties set forth in Section 5.1 above an earlier date, provided that such representations and warranties shall be true and correct as of such earlier date unless the Closing Date as if made on failure of such representations and warranties to be true and correct would not have a Material Adverse Effect or (y) to the Closing Dateextent the failure of such representations and warranties to be true in all respects, individually or in the aggregate, would not have a Material Adverse Effect;
(ii) No event the Partnership shall have received all the tenant estoppels (and landlord estoppels) described in Section 32 hereof with respect to such stage, each of which shall be substantially in the form attached hereto as EXHIBIT M (all estoppel certificates shall contain information reasonably satisfactory to the Partnership);
(iii) the Contributors shall have performed all material obligations and agreements which they have undertaken to be performed pursuant to this Agreement at or prior to such Closing Date including the delivery of all instruments required to be delivered pursuant to Section 11 hereof;
(iv) the Partnership shall have received from the holder of each Existing Mortgage any consent to the acquisition by the Partnership of the applicable Property required pursuant to the terms of the loan documents executed in connection with such Existing Mortgage, which consent shall impose no terms which are not reasonably acceptable to the Partnership or the REIT, and such holder's confirmation that the holder of such Existing Mortgage is not in default beyond any applicable notice and cure grace periods that exist under the applicable Existing Mortgage; and
(v) the Partnership shall have received a payoff letter from the holder(s) of the Existing Mortgages, if such Existing Mortgages are scheduled to be repaid on the part of applicable Closing Date and, in the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of event such Existing Mortgages shall not be repaid on the applicable Closing Date, a consent to the transaction contemplated hereby, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bondsrequired.
(b) The Public Parties’ obligation Contributors' obligations to consummate transfer the applicable Contributors' interest in the applicable Existing Owner in accordance with this Agreement on each Closing is expressly conditioned upon Date shall be subject to the satisfaction or waiver of the followingfollowing conditions precedent on such Closing Date:
(i) No event of default beyond any applicable notice and cure periods on the part all of the Company has occurred Partnership's and is continuing the REIT's representations and warranties made in this Agreement shall be true and correct at Closing, as if made on such date, except (i) to the extent such representations and warranties speak of an earlier date, provided that such representations and warranties shall be true and correct as of such earlier date unless the failure of such representations and warranties to be true and correct would not have 57 an Acquiror Material Adverse Effect or REIT Material Adverse Effect; (ii) to the extent the failure of such representations and warranties to be true in all respects, individually or in the aggregate, would not have an Acquiror Material Adverse Effect or REIT Material Adverse Effect or (iii) any inaccuracy of any representation or warranty of the REIT contained herein which results solely as a result of the merger of the REIT with and into Keystone Property Trust with Keystone Property Trust being the surviving entity, except as such inaccuracy may have an Acquiror Material Adverse Effect or a REIT Material Adverse Effect;
(ii) intentionally omitted;
(iii) the Partnership shall have provided the Contributors with evidence, in form and substance reasonably satisfactory to RMIT, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇, that one or more investors have invested or entered into a binding and irrevocable agreement to invest at least $40,000,000 in equity in the REIT, in the aggregate, in accordance with the provisions of the term sheet attached as SCHEDULE 20 hereto;
(iv) the Partnership and the REIT shall have performed all material obligations and agreements undertaken by such Persons herein to be performed at or prior to such Closing Date; and
(iiv) The Company the REIT shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon delivered Stockholder Voting Agreements in the form of all customary documentsEXHIBIT I attached hereto to the Contributors from various shareholders who, including without limitation collectively, represent the Definitive Documents, necessary and reasonable for the consummation votes of shareholders owning in excess of 45% of the transactions shares of the REIT Common Stock (including any REIT Common Stock issued in connection with the transaction contemplated by this AgreementSCHEDULE 20 hereto), including as of the Rental Agreement and all documents related to Stage I Closing Date (without taking into account the Project BondsREIT Common Stock which will be issued at the Stage I Closing).
Appears in 1 contract
Sources: Contribution and Exchange Agreement (American Real Estate Investment Corp)
Conditions Precedent to Closing. The obligations of the Lender to make Loans shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 8.02):
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction Lender (or waiver of the following:
its counsel) shall have received from each party hereto either (i) All representations and warranties a counterpart of the Public Parties set forth in Section 5.1 above shall be true and correct as this Agreement signed on behalf of the Closing Date as if made on the Closing Date;
such party or (ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation evidence satisfactory to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all Lender (which may include facsimile transmission of the Public Parties’ respective obligations hereunder remain available in all respects as a signed signature page of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds) that such party has signed a counterpart of this Agreement.
(b) The Public Lender shall have received a favorable written opinion (addressed to the Lender and dated the Effective Date) of Milbank, Tweed, H▇▇▇▇▇ & M▇▇▇▇▇ LLP, counsel for the Borrower, covering such matters as the Lender shall request.
(c) The Lender shall have received such documents and certificates as the Lender or its counsel may reasonably request relating to (i) the organization, existence and good standing of the Borrower, (ii) the authorization of the Transactions and (iii) any other legal matters relating to the Credit Parties’ obligation , this Agreement or the Transactions, all in form and substance satisfactory to the Lender and its counsel.
(d) All governmental and third party approvals necessary or, in the discretion of the Lender, advisable in connection with the financing contemplated hereby and the continuing operations of the Borrower and its Subsidiaries shall have been obtained and be continuing in full force and effect.
(e) The Lender shall have received a certificate, dated the Effective Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02.
(f) The Lender shall have received all amounts due and payable on or prior to the Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(g) All other legal and regulatory matters shall be satisfactory to the Lender.
(h) Except for Disclosed Matters, there shall be no pending or threatened litigation, arbitration, administrative proceeding or consent decree that would reasonably be expected to (a) result in a Material Adverse Effect (except for Disclosed Matters) or (b) have a material adverse effect on the ability of the Credit Parties to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:Transactions.
(i) No The Lender shall have received evidence that the BlueBay Credit Agreement is in effect, that no “event of default beyond any applicable default” or event that with the giving of notice and cure periods on or the part passage of the Company time or both would become an “event of default” has occurred and is continuing thereunder and that all amounts which may be advanced thereunder to the Borrower have been advanced.
(j) The Lender shall have received such documents and certificates as the Lender or its counsel may request, all in form and substance satisfactory to the Lender and its counsel and as further described in the list of closing documents attached as Exhibit C hereto. The Lender shall notify the Borrower of the Closing Effective Date; and
(ii) The Company , and such notice shall have paid all fees be conclusive and expenses binding. Notwithstanding the foregoing, the obligations of the Project Bonds as set forth herein, and all other fees and expenses Lender to make Loans hereunder shall not become effective unless each of the JDA as required by foregoing conditions is satisfied (or waived pursuant to Section 3.6(c8.02) hereof to be paid on at or prior to 3:00 p.m., New York City time, on the Closing; date hereof (and, in the event such conditions are not so satisfied or waived, the Commitment shall terminate at such time).
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 1 contract
Sources: Credit Agreement (Atari Inc)
Conditions Precedent to Closing. 9.1 Purchaser's obligation under this Agreement to purchase the Group A Portfolio is subject to the fulfillment of each of the following conditions, subject, however, to the provisions of Section 9.3.
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) All representations and warranties of the Public Parties set forth in Section 5.1 above Seller contained herein shall be true materially true, accurate and correct as of the Closing Date as if made on except to the Closing Dateextent they relate only to an earlier date (subject to the provisions of Sections 7.1(c) and (d));
(iib) No event of default beyond any applicable notice Seller shall be ready, willing and cure periods on able to deliver fee title to the part Group A Portfolio (except in the case of the Public Parties has occurred Yonkers property, in which case Yonkers shall be ready, willing and able to assign its right, title and interest in the Ground Lease) in accordance with the terms and conditions of this Agreement, including, without limitation, the condition that the Title Company shall be prepared to issue at Closing (or prepared to unconditionally commit to issue at Closing, with no "gap") its title policy in the form required by Section 6; and
(c) Seller shall have delivered all the documents and other items required pursuant to Section 10, and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by the Seller at or prior to the Closing.
9.2 Seller's obligation under this Agreement to sell the Group A Portfolio to Purchaser is continuing hereunder subject to the fulfillment of each of the following conditions, subject, however to the provisions of Sections 9.3 and 9.4:
(a) the representations and warranties of Purchaser contained in Section 7.2 shall be materially true, accurate and correct as of the Closing Date;
(iiib) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties Purchaser shall have delivered any documents reasonably requested by to Seller the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereoffunds required hereunder;
(ivc) The Public Parties Purchaser shall have provided written confirmation delivered to Seller all the Company that all funds allocated documents to be executed by the Public Parties pursuant to Purchaser set forth in Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended11;
(vd) There all consents and approvals of governmental authorities and parties to agreements to which Purchaser is no litigation pending a party or threatened by which Purchaser's assets are bound that are required with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement shall have been obtained and all documents related copies thereof shall have been delivered to Seller at or prior to the Project BondsClosing;
(e) on or prior to Closing Date, (i) Purchaser shall not have applied for or consented to the appointment of a receiver, trustee or liquidator for itself or any of its assets unless the same shall have been discharged prior to the Closing Date, and no such receiver, liquidator or trustee shall have otherwise been appointed, unless same shall have been discharged prior to the Closing Date, (ii) Purchaser shall not have admitted in writing an inability to pay its debts as they mature, (iii) Purchaser shall not have made a general assignment for the benefit of creditors, (iv) Purchaser shall not have been adjudicated a bankrupt or insolvent, or had a petition for reorganization granted with respect to Purchaser, (v) Purchaser shall not have filed a voluntary petition seeking reorganization or an arrangement with creditors or taken advantage of any bankruptcy, reorganization, insolvency, readjustment or debt, dissolution or liquidation law or statute, or filed an answer admitting the material allegations of a petition filed against it in any proceedings under any such law, or had any petition filed against it in any proceeding under any of the foregoing laws unless the same shall have been dismissed, canceled or terminated prior to the Closing Date.
(bf) The Public Parties’ obligation Purchaser shall have executed and delivered the Group B Agreement (as defined below) and shall have completed its due diligence, such that it is contractually obligated to consummate purchase the Closing is expressly conditioned upon Group B Properties (as defined below) subject to the satisfaction or waiver terms and conditions of the following:Group B Agreement.
(ia) No In the event of default beyond that any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth hereincondition contained in Section 9.1, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
expiration of sixty (iii60) The Company days following the execution and delivery of this Agreement (the Public Parties shall have agreed upon "Closing Period"), is not satisfied regarding either (i) only one Property (or the form of all customary documentsGround Lease), including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.or
Appears in 1 contract
Sources: Purchase and Sale Agreement (Philips International Realty Corp)
Conditions Precedent to Closing. The effectiveness of this Agreement (which shall occur on the Closing Date) is subject to the satisfaction of the following conditions precedent as of the Closing Date on or before March 1, 2012 (and if the following conditions precedent are not satisfied by such time, this Agreement shall automatically terminate):
(a) The Companyeach Party shall have received, in a form satisfactory to it, opinions from counsel to the other Party covering due authorization, execution and delivery of the Capital Protection Documents by the other Party, in each case in form and substance reasonably satisfactory to such Party;
(b) each Party shall have received, in a form satisfactory to it, copies of all Capital Protection Documents duly executed and delivered by the other Party and, where applicable, the Guarantor;
(c) the Capital Protection Provider shall have received, in a form satisfactory to it, a copy of the Custody Agreement duly executed by the Trust and the Custodian;
(d) the Capital Protection Provider shall have received an officer’s obligation to consummate certificate of the Fund, dated as of the Closing is expressly conditioned upon Date, substantially in the satisfaction form of Exhibit B, with appropriate insertions and attachments, reasonably satisfactory in form and substance to the Capital Protection Provider, executed by the President or waiver any Vice President or any Responsible Officer of the following:
Fund and the Secretary or any Assistant Secretary on behalf of the Fund and which certificate shall include (i) All representations the incumbency and warranties signature of the Public Parties set forth in Section 5.1 above shall officers of the Fund executing any Capital Protection Document, or having authorization to execute any certificate, notice or other submission required to be delivered to the Agent or the Capital Protection Provider pursuant to this Agreement, (ii) true and correct complete copies of the Organizational Documents and each Prospectus of the Fund and the Organizational Documents of the Trust, certified as of the Closing Date as if complete copies thereof by the Secretary or an Assistant Secretary of the Fund or the Trust, as applicable, (iii) certificates dated as of a recent date from the Secretary of State or other appropriate authority, evidencing the good standing of each of the Trust and the Fund (x) in the jurisdiction of its organization and (y) in each other jurisdiction where its ownership, lease or operation of property or the conduct of its business requires it to qualify as a foreign Person except, as to this subclause (y), where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect with respect to the Fund;
(e) the Capital Protection Provider shall have received an officer’s certificate of the Adviser, dated as of the Closing Date, substantially in the form of Exhibit B, with appropriate insertions and attachments, reasonably satisfactory in form and substance to the Capital Protection Provider, executed by the President or any Vice President or any Responsible Officer of the Adviser and the Secretary or any Assistant Secretary on behalf of the Adviser and which certificate shall include (i) the incumbency and signature of the officers of the Adviser executing any Capital Protection Document, or having authorization to execute any certificate, notice or other submission required to be delivered to the Agent or the Capital Protection Provider pursuant to this Agreement, (ii) true and complete copies of the Organizational Documents of the Adviser, certified as of the Closing Date as complete copies thereof by the Secretary or an Assistant Secretary of the Adviser, (iii) certificates dated as of a recent date from the Secretary of State or other appropriate authority, evidencing the good standing of the Adviser (x) in the jurisdiction of its organization and (y) in each other jurisdiction where its ownership, lease or operation of property or the conduct of its business requires it to qualify as a foreign Person except, as to this subclause (y), where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect with respect to the Adviser;
(f) the Fund shall have received a certificate dated as of the Closing Date, substantially in the form of Exhibit C, with appropriate insertions and attachments, reasonably satisfactory in form and substance to the Fund, executed by the Secretary or an Assistant Secretary of the Capital Protection Provider on behalf of the Capital Protection Provider, and which certificate shall include the incumbency and signature of the employees of the Capital Protection Provider authorized to execute on behalf of the Capital Protection Provider any Capital Protection Document to which it is party, or having authorization to execute any certificate, notice or other submission required to be delivered to the Fund pursuant to this Agreement;
(g) the Fund shall have received, in a form satisfactory to it, a certificate, dated as of the Closing Date, substantially in the form of Exhibit D, with appropriate insertions and attachments, reasonably satisfactory in form and substance to the Fund, executed by a permanent representative of the Guarantor on behalf of the Guarantor, and which certificate shall include the incumbency and signature of the employees of the Guarantor authorized to execute on behalf of the Guarantor any Capital Protection Document to which it is party, or having authorization to execute any certificate, notice or other submission required to be delivered to the Fund pursuant to this Agreement;
(h) the Capital Protection Provider shall have received, in a form satisfactory to it, a copy of the resolutions, in form and substance reasonably satisfactory to the Capital Protection Provider, of the Board of Directors (or analogous body) of the Fund authorizing the execution, delivery and performance of this Agreement and the other Capital Protection Documents to which it is a party, certified on behalf of the Fund by the Secretary or an Assistant Secretary of the Fund, as of the Closing Date, which certification shall be included in the certificate delivered in respect of the Fund pursuant to Section 3.01(d), shall be in form and substance reasonably satisfactory to the Capital Protection Provider and shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded;
(i) the Capital Protection Provider shall have received, in a form satisfactory to it, a certification that shall be included in the certificate delivered in respect of the Fund pursuant to Section 3.01(d), stating on behalf of the Fund that as of the Closing Date:
(i) The representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the Closing Date, as though made on and as of the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder Fund Event or Knock-Out Event exists as of the Closing Date;
(iii) The Title Company is irrevocably committed No licenses, authorizations, consents or approvals as referred to issue in Section 4.01(n) are required as of the Title Policy Closing Date or, in the case that such documents are required, that they are required and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;attaching copies thereof; and
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects Aggregate Protected Amount as of the applicable Closing Date, to Date does not exceed the extent not previously expendedMaximum Settlement Amount;
(vj) There is no litigation pending or threatened the Fund shall have arranged with respect the Custodian for the Capital Protection Provider and the Agent to directly receive the Project Site which applicable reports and information contained in Schedule II;
(Ak) has resulted the representations and warranties made by the Fund and Capital Protection Provider, respectively, contained in ARTICLE 4 shall be true and correct in all material respects on and as of the Closing Date;
(l) each Party shall have received, in a final order form satisfactory to it, all corporate and other proceedings, and all documents, instruments and other legal matters reasonably requested by such Party evidencing or confirming the effect that accuracy of the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned representations and warranties made by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company other parties hereunder or the Public Parties authority of such other parties to perform their obligations hereunder (enter into this Agreement or the other than litigation relating Capital Protection Document to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described hereinwhich they are party; provided that with respect to this subsection (C) to the extent that and
(i) the State has assumed registration statement of the responsibility Fund shall have been filed with the Commission and cost of defending any such litigationbecome effective, (ii) the State is actively investment policies and vigorously defending any objectives of the Fund as described in the Prospectus contained in such pending litigationregistration statement and the description of the Capital Protection Provider and the Capital Protection Agreement in such Prospectus shall, in each case, be reasonably satisfactory to the Agent, and (iii) no injunctive relief has been granted by the Agent shall have determined in its reasonable discretion that any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect modifications to such pending or threatened litigation;
(vi) All federal authorizations and Prospectus from the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance draft most recently filed with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or Commission prior to the Closing; and.
(iii) The Company date of this Agreement do not materially change the rights of the Capital Protection Provider under, or the terms of, this Agreement. Upon receipt the satisfaction of all documentary conditions precedent and its reasonable satisfaction that all non-documentary conditions precedent have been satisfied on or before March 1, 2012, each of the Fund and the Public Parties Capital Protection Provider will confirm in writing to the other that the conditions precedent have been satisfied, and upon such written confirmation thereof from the Fund and the Capital Protection Provider on or before March 1, 2012, the Closing Date shall occur; provided, that such confirmation shall not constitute a waiver of any non-documentary condition that was not satisfied, and the non-defaulting Party shall be entitled to exercise any rights it may have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation hereunder or under applicable Law arising out of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bondsfailure of such condition.
Appears in 1 contract
Conditions Precedent to Closing. (a) The Company’s obligation obligations of Operating Partnership to consummate issue the Units in exchange for the Stock on the Closing is expressly conditioned upon Date shall be subject to the satisfaction or waiver of the followingfollowing conditions:
(i) All Contributor will contribute and deliver, or will cause to be contributed and delivered, stock certificates representing the Stock, duly endorsed in blank or accompanied by stock powers duly executed in blank, in proper form for transfer;
(ii) Contributor delivers, or causes to be delivered, the Lock-Up Agreement and the Amended and Restated Agreement of Limited Partnership of Operating Partnership, attached as EXHIBIT 1.31 hereto;
(iii) all requisite consents and approvals of third parties to the consummation of the transactions are obtained;
(iv) the IPO is consummated;
(v) the representations and warranties contained in Article III hereof, the Exhibits attached hereto and in all certificates and other documents to be delivered by Contributor pursuant to this Agreement shall be true, complete and accurate as of the Public Parties set forth in Section 5.1 above shall be true date hereof and correct at and as of the Closing Date as if though such representations and warranties were made on the Closing Date;
(ii) No event of default beyond any applicable notice at and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigationdate;
(vi) All federal authorizations the Contributor performs, in all material respects, each covenant and agreement set forth in Article V hereto required to be performed prior to Closing;
(vii) Contributor delivers to Operating Partnership such certificates as it may reasonably request on or prior to the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order Pricing Date to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance evidence compliance with the Current Site Plan have been obtained, conditions set forth in this Section 2.2;
(viii) Contributor delivers the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 daysRelease; and
(viiix) The Company and the Public Parties each Related Agreement shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary been executed and reasonable for the consummation delivered by each of the transactions contemplated other Stockholders, and each condition precedent required by this Agreement, including the Rental Agreement and all documents related to the Project BondsRelated Agreements shall have been completed or waived.
(b) The Public Parties’ obligation obligations of Contributor to consummate contribute the Stock in exchange for the Units on the Closing is expressly conditioned upon Date shall be subject to the satisfaction or waiver of the followingfollowing conditions:
(i) No event the Company distributes to Contributor cash in amount sufficient to allow Contributor to meet his Estimated Income Tax Obligations up to the Closing Date, determined in accordance with SECTION 5.5 hereof;
(ii) Operating Partnership delivers, or causes to be issued to Contributor, the Units in accordance with the terms of default beyond any applicable notice this Agreement;
(iii) the IPO is consummated;
(iv) the representations and cure periods on the part warranties contained in Article IV hereof and in all certificates to be delivered by Operating Partnership pursuant to this Agreement shall be true and accurate as of the Company has occurred date hereof and is continuing at and as of the Closing Date; andDate as though such representations and warranties were made at and as of such date;
(iiv) The Company shall have paid all fees Operating Partnership delivers to Contributor the Release and expenses of the Project Bonds such certificates as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid he may reasonably request on or prior to the ClosingPricing Date to evidence compliance with the conditions set forth in this Section 2.2; and
(vi) Operating Partnership delivers, or causes to be delivered, the Opinion of Operating Partnership's counsel.
(c) On the Pricing Date, Contributor agrees to deliver or cause to be delivered, in escrow, to Hunton & ▇▇▇▇▇▇▇▇, counsel to Operating Partnership, the items described in subparagraphs 2.2(a)(i), (ii), (iii) The Company and (vii), and Operating Partnership agrees to deliver or cause to be delivered, in escrow, to Hunton & ▇▇▇▇▇▇▇▇ the Public Parties items in subparagraphs 2.2(b)(ii), (v) and (vi). Unless otherwise directed by Contributor and Operating Partnership, if the closing is canceled, postponed or otherwise fails to occur on or before the seventh (7th) business day following the Pricing Date, Hunton & ▇▇▇▇▇▇▇▇ shall have agreed upon return to Contributor or Operating Partnership, as the form case may be, all items delivered to them by the end of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bondssuch day.
Appears in 1 contract
Sources: Stock Contribution and Exchange Agreement (Aegis Investment Trust)
Conditions Precedent to Closing. Lenders shall not be obligated to make any Loan, or to take, fulfill, or perform any other action under this Agreement, until the following conditions have been satisfied to each Lender's reasonable satisfaction or waived in writing by each Lender:
4.1.1 Agent shall have received:
(a) The Company’s obligation originals of the documents set forth on Schedule 1.1f (Schedule of Documents), each duly executed by the appropriate parties, together with such other assurances, certificates, documents or consents related to the foregoing as Agent and/or Lenders reasonably may require, all in form and substance satisfactory to Agent and Lenders;
(b) such documentation as Agent may reasonably require to establish the due organization, valid existence and good standing of Borrower, its qualification to engage in business in each material jurisdiction in which it is engaged in business or required to be so qualified, its authority to execute, deliver and perform the Loan Documents to which it is a party, the identity, authority and capacity of each Authorized Signatory thereof authorized to act on its behalf, including certified copies of articles of organization and amendments thereto, bylaws and operating agreements and amendments thereto, certificates of good standing and/or qualification to engage in business, tax clearance certificates, certificates of corporate resolutions, incumbency certificates, certificates of Authorized Signatory, and the like;
(c) a list of all of Borrower's Material Contracts and a copy of such Material Contracts requested by Agent;
(d) a copy of all insurance certificates or other evidence of insurance for the Collateral;
(e) originals of favorable written opinions, dated as of the date hereof, of independent and internal counsel to the Borrower, addressed to Agent and Lenders (and their respective participants and assigns) and otherwise in form and substance satisfactory to Agent as to such matters as Agent shall determine;
(f) copies of all consents and authorizations of, permits from or filings with, any Governmental Authority or other Person required in connection with the execution, delivery, performance or enforceability of the Loan Documents or any provision thereof and no material changes in governmental regulations affecting the Borrower, Agent or the Lenders shall have occurred;
(g) (i) a certified lien search for the State of Delaware and the State of California with respect to the Borrower and each of its Subsidiaries, (ii) an International Registry search with respect to each applicable item of Equipment; (iii) an FAA search with respect to each applicable item of Equipment, (iv) a Federal tax lien search with respect to the Borrower and each of its Subsidiaries, and any other searches as may be required by Agent; and
(h) the "chattel paper" original of each Lease, which thereafter shall be held by Agent until the Termination Date; provided Agent shall not be liable in the event of any damage, loss or destruction of any of such documents or instruments.
4.1.2 All of the financing statements and other documentation described in Section 3.1.7 shall have been filed with the appropriate Governmental Agencies, and Agent shall hold a first priority perfected Lien in the Collateral, for the ratable benefit of Lenders, subject only to Permitted Liens.
4.1.3 With respect to all Equipment, the following statements shall be true, and Agent shall have received evidence reasonably satisfactory to it (including, with respect to each item of Equipment which is eligible for registration with the International Registry, a printout of the "priority search certificate" from the International Registry showing the Equipment Owner's ownership interest with respect to such Equipment under a contract of sale) with respect to each item of Equipment and any related Lease included in the Borrowing Base to the effect that:
(a) the Borrower is in compliance with the applicable requirements of the Mortgage and Applicable Law;
(b) the applicable Equipment Owner has good title under Applicable Law to such item of Equipment, free and clear of Liens other than (i) Permitted Liens and (ii) the Lien of Agent;
(c) the Borrower has completed all registrations and filings required by any Aviation Authority in such jurisdiction and Agent shall hold a first priority Lien on each item of Equipment under Applicable Law (or with respect to Assets for which a pre-filing has been made, Agent shall be the beneficiary of a second priority Lien on such Equipment, and documentation sufficient to terminate any first priority lien on such Equipment shall have been delivered to Agent or to an escrow with such documentation to be filed upon payoff of such lien through Revolving Loan proceeds) and has provided, or is in a position to provide, all opinions of independent counsel as required by Agent; and
(d) Agent shall have received evidence reasonably satisfactory to it (including, with respect to each Cape Town Eligible Lease, a printout of the "priority search certificate" (as defined in the Regulations for the International Registry) from the International Registry relating to the Lessor's interest in and International Interest with respect to such item of Equipment under such Lease and including, with respect to all Leases that are not Cape Town Eligible, an original, favorable written opinion of independent counsel addressed to Agent and Lenders (and their respective participants and assigns) with respect to Agent's Lien on such item of Equipment;
4.1.4 payment by Borrower to Agent of all fees, costs, and expenses of closing (including reasonable fees of legal counsel to Agent presented as of the Closing Date);
4.1.5 no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before any court, Governmental Authority or legislative body to enjoin, restrain or prohibit, or to obtain damages in respect of, or which is related to or arises out of, this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby or thereby and which, in any Lender's sole judgment, would make it inadvisable to consummate the Closing is expressly conditioned upon the satisfaction transactions contemplated by this Agreement or waiver any other Loan Document;
4.1.6 Payment by Borrower to each Lender of any of the following:fees due to each Lender;
(i) All 4.1.7 No circumstance or event shall have occurred, including but not limited to any litigation, actions, suits, proceedings or investigations pending as to Borrower, that constitutes a Material Adverse Effect as of the Closing Date;
4.1.8 all of the representations and warranties of the Public Parties set forth in Section 5.1 above Borrower under this Agreement shall be true and correct as of the Closing Date as if made on the Closing Date;
(ii) No event of default beyond any applicable notice 4.1.9 Borrower shall be in compliance with all the terms and cure periods on the part provisions of the Public Parties has Loan Documents, and no Default or Event of Default shall have occurred and is continuing hereunder as of the Closing Datebe continuing;
(iii) The Title Company is irrevocably committed 4.1.10 Agent shall have completed its independent business and legal due diligence, including but not limited to issue the Title Policy financial, legal and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company insurance reviews, with results satisfactory to issue the Title Policy in accordance with the terms hereofAgent;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, 4.1.11 each Lender and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties Agent each shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of obtained satisfactory credit or other required internal approval(s) in connection with the transactions contemplated by this Agreement, including the Rental Agreement and all documents related the Loan Documents;
4.1.12 The Closing Date shall occur on or before March __, 2013;
4.1.13 Borrower shall have established a non-interest bearing account with Agent;
4.1.14 All legal matters relating to the Project Bonds.
(b) The Public Parties’ obligation Loan Documents shall be satisfactory to consummate Sheppard, Mullin, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, legal counsel to Union Bank N.A. in all of its capacities hereunder. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 4.1, the Closing is expressly conditioned upon terms of this Section 4.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 4.1 has been complied with to Agent's and Lenders' satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required specifically waived in a writing by Section 3.6(c) hereof to be paid on or prior to the Closing; andLenders.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 1 contract
Conditions Precedent to Closing. (a) The Company’s obligation to consummate Commitments of the Closing is expressly conditioned upon Lenders shall not become effective unless and until all fees due and payable by the satisfaction or waiver of Borrower in connection with this Agreement have been paid and the Administrative Agent shall have received the following:
(a) Promissory notes, in a form acceptable to the Administrative Agent, payable to the order of each Lender that has requested such a note.
(b) Copies of the resolutions of the Board of Directors of the Borrower approving this Agreement and all documents evidencing other necessary corporate action, certified by the Secretary or an Assistant Secretary of the Borrower to be true and correct, and in full force and effect on and as of the date hereof.
(c) A certificate of the Secretary or an Assistant Secretary of the Borrower, dated as of the date hereof, certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder.
(d) A certificate of a Responsible Officer of the Borrower, dated as of the date hereof, certifying (i) All the accuracy of the representations and warranties of the Public Parties set forth in Section 5.1 above shall be true contained herein and correct as of the Closing Date as if made on the Closing Date;
(ii) No that no event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse, or both.
(e) Certified copies of all governmental approvals and authorizations required to be obtained in connection with the execution, delivery and performance by the Borrower of this Agreement.
(f) Certified copies of the Closing Date;Restated Charter and By-Laws of the Borrower.
(iiig) The Title Company is irrevocably committed to issue Favorable opinions of R. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Associate General Counsel of the Title Policy Borrower, and the Public Parties have delivered any documents reasonably requested by the Title Company in order of Hunton & ▇▇▇▇▇▇▇▇, counsel for the Title Company Borrower, substantially in the forms of Exhibit C-1 and C-2, respectively, hereto and as to issue such other matters as any Lender through the Title Policy in accordance with the terms hereof;Administrative Agent may reasonably request.
(ivh) The Public Parties have provided written confirmation to A favorable opinion of King & Spalding, counsel for the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available Arranger, substantially in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project BondsExhibit D hereto.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part Evidence that all outstanding obligations of the Company has occurred Borrower under the Existing Credit Facility have been paid in full and is continuing as that the commitments of the Closing Date; and
(ii) The Company shall lenders under the Existing Credit Facility have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; andbeen terminated.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 1 contract
Conditions Precedent to Closing. (a) A. Conditions Precedent to the Obligations of the Shareholder ---------------------------------------------------------- The Company’s obligation obligations of the Shareholder to consummate the Closing is expressly conditioned upon transactions contemplated hereby shall be subject to the satisfaction at or waiver of the following:
(i) All representations and warranties of the Public Parties set forth in Section 5.1 above shall be true and correct as of the Closing Date as if made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation prior to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform closing of all of the Public Parties’ respective obligations hereunder remain available following conditions precedent (any or all of which may be waived, in all respects as of the applicable Closing Datewhole or in part, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have Shareholder in her discretion):
1. No preliminary or permanent injunction or other order issued by a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part or by any regulatory authority, nor any statute, rule or regulation enacted or promulgated subsequent to the date of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amendedAgreement, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for prohibits the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bondshereby shall be in effect.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company 2. GLDI shall have paid performed in all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as material respects its obligations under this Agreement required by Section 3.6(c) hereof to be paid performed by it on or prior to the Closing; andclosing. Without limiting the generality of the immediately preceding sentence, the Amended and Restated Articles of Incorporation of GLDI shall have been amended to increase the capital stock of GLDI so as to permit GLDI to issue the GLDI Shares to the Shareholder.
(iii) 3. The Company representations and warranties of GLDI contained in this Agreement shall be true and correct in all material respects at and as of the Public Parties date of closing as if made at and as of such time, except as affected by the transactions contemplated hereby.
4. The Shareholder shall have agreed upon received a certificate, dated as of the form date of closing, of the President of GLDI to the effect that the conditions precedent specified in paragraphs 2 and 3 of this Section IV.A. have been satisfied.
B. Conditions Precedent to the Obligations of GLDI ----------------------------------------------- The obligations of GLDI to consummate the transactions contemplated hereby shall be subject to the satisfaction at or prior to the closing of all customary documentsof the following conditions precedent (any or all of which may be waived, including without limitation in whole or in part, by GLDI in its discretion):
1. No preliminary or permanent injunction or other order issued by a court of competent jurisdiction or by any regulatory authority, nor any statute, rule or regulation enacted or promulgated subsequent to the Definitive Documentsdate of this Agreement, necessary and reasonable for which prohibits the consummation of the transactions contemplated hereby shall be in effect.
2. The Shareholder shall have performed in all material respects her obligations under this Agreement required to be performed by this Agreement, including the Rental Agreement and all documents related her on or prior to the Project Bondsclosing. Without limiting the generality of the immediately preceding sentence, the Amended and Restated Articles of Incorporation of GLDI shall have been amended to increase the capital stock of GLDI so as to permit GLDI to issue the GLDI Shares to the Shareholder.
3. The representations and warranties of the Shareholder contained in this Agreement shall be true and correct in all material respects at and as of the date of closing as if made at and as of such time, except as affected by the transactions contemplated hereby.
4. GLDI shall have received a certificate, dated as of the date of closing, of the Shareholder to the effect that the conditions precedent specified in paragraphs 2 and 3 of this Section IV.B. have been satisfied.
Appears in 1 contract
Sources: Second Exchange Agreement (Group Long Distance Inc)
Conditions Precedent to Closing. The consummation of this Plan hereunder shall be subject to the following conditions, to be satisfied prior to or at the Closing:
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the followingThat:
(i) All all the representations and warranties of the Public Parties set forth in Section 5.1 above contained herein shall be true and correct as of the Closing Date with the same effect as if though made on the Closing Dateas of and at such date;
(ii) the performance of all obligations required by this Plan to be performed by MFVAT, on behalf of the Acquired Funds, and by SAST on behalf of the Acquiring Funds, respectively, shall occur prior to the Closing; and
(iii) each of MFVAT and SAST shall execute and deliver at the Closing a certificate signed by a duly authorized officer of such trust to the foregoing effect.
(b) The SEC shall not have issued an unfavorable management report under Section 25(b) of the 1940 Act or instituted or threatened to institute any proceeding seeking to enjoin consummation of the Plan under Section 25(c) of the 1940 Act.
(c) No event other legal, administrative or other proceeding shall have been instituted or threatened that would materially affect the financial condition of default beyond any applicable notice Acquired Fund or Acquiring Fund or would prohibit the transactions contemplated hereby.
(d) This Plan shall have been approved by a vote of a "majority of the outstanding voting securities," as such term is defined in Section 2(a)(42) of the 1940 Act, of each Acquired Fund at the Meeting or any adjournment thereof; provided, however, that if this Plan shall be so approved as to some, but not all, Acquired Funds, then at the election of SAST, this Plan may be consummated as to those Acquired Funds as to which this Plan has been so approved.
(e) MFVAT shall create and cure periods deliver at Closing a statement of assets and liabilities of each Acquired Fund as of the close of trading on the part New York Stock Exchange on the Closing Date for the purpose of determining the number of Acquiring Fund shares to be issued pursuant to Section 2 of this Plan, which statement will accurately reflect its Net Assets as of such date, in conformity with generally accepted accounting principles applied on a consistent basis.
(f) SAST shall create and deliver at Closing a statement of assets and liabilities of each Acquiring Fund as of the Public Parties has occurred close of trading on the New York Stock Exchange on the Closing Date for the purpose of determining the number of Acquiring Fund shares to be issued pursuant to Section 2 of this Plan, which statement shall accurately reflect its net assets and is continuing hereunder outstanding shares of beneficial interest as of such date, in conformity with generally accepted accounting principles applied on a consistent basis.
(g) MFVAT, on behalf of each Acquired Fund, shall have provided for delivery as of the Closing of those Net Assets of each Acquired Fund to be transferred to the account of the corresponding Acquiring Fund at SAST's custodian, State Street Bank and Trust Company (the "Acquiring Fund Custodian"), 225 Franklin Street, Boston, Massachusetts 02110, as follows:
(▇) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇n book entry form in the name of the Acquired Fund's custodian, as record holder for the Acquired Fund, shall be presented by the Acquired Fund to the Acquiring Fund Custodian for examination no later than three business days preceding the Closing Date and, at the Closing, shall be delivered by the Acquired Fund to the Acquiring Fund Custodian for the account of the Acquiring Fund, duly endorsed in proper form for transfer and in such condition as to constitute good delivery thereof in accordance with the customary practice of brokers, and shall be accompanied by all necessary securities transfer stamps; and
(ii) Portfolio securities held of record by the Acquired Fund's custodian in book entry form shall be delivered to the Acquiring Fund by the Acquired Fund's custodian by recording the transfer of beneficial ownership thereof on its records. The Acquiring Fund Custodian shall present at the Closing its written receipt for the portfolio securities of each Acquired Fund.
(h) MFVAT, on behalf of each Acquired Fund, shall have prepared and deliver at the Closing a list of names and addresses of the shareholders of record of its shares and the number of shares of beneficial interest of each Acquired Fund owned by each such shareholder, all as of the close of trading on the New York Stock Exchange on the Closing Date, certified by its transfer agent or by its President to the best of its or his knowledge and belief.
(i) SAST, on behalf of each Acquiring Fund, shall have prepared satisfactory evidence that each Acquiring Fund's shares to be issued at the Closing have been registered in an account on the books of the Acquiring Fund in such manner as the officers of MFVAT on behalf of each Acquired Fund reasonably shall deem appropriate.
(j) There shall be delivered to SAST and MFVAT an opinion of Jorden Burt LLP, special counsel to SAST, to the effect that, provided ▇▇▇ ▇▇▇▇▇▇▇tions contemplated hereby are carried out in accordance with this Plan, and based upon certificates of the officers of SAST and MFVAT with regard to matters of fact, Contract Owners with contract values allocated to the Acquiring and Acquired Funds will not incur any additional tax obligations because of the reorganization transactions. In the case of the acquisition of MFVAT U.S. Government Income by SAST Cash Management, the transaction, while taxable, will not be taxed because of the tax deferral provided by the variable contracts. Another opinion of counsel will conclude that the other transactions will constitute tax-free reorganizations, and Contract Owners with contract values allocated to the Acquiring and Acquired Funds will not incur any additional tax obligations because of the reorganization transaction.
(k) There shall be delivered to SAST an opinion, in form and substance reasonably satisfactory to it, of counsel employed or retained by MFVAT (who may be an officer of MFVAT or its investment adviser) with respect to the Acquired Funds to the effect that, subject in all respects to the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and other laws now or hereafter affecting generally the enforcement of creditors' rights and to general equity principles:
(i) MFVAT is a business trust duly organized under the laws of the Commonwealth of Massachusetts, and is an existing business trust in good standing;
(ii) MFVAT is authorized to issue an unlimited number of shares of beneficial interest of each Acquired Fund, par value $0.001 per share, and such shares have not been divided into classes. Assuming that the initial shares of beneficial interest of Acquired Fund were issued in accordance with the 1940 Act and the Declaration of Trust and By-laws of MFVAT, and that all other outstanding shares of the Acquired Funds were sold, issued and paid for in accordance with the terms of the Acquired Funds' prospectuses in effect at the time of such sales, each such outstanding share is fully paid, non-assessable, freely transferable and has full voting rights;
(iii) The Title Company Each Acquired Fund is irrevocably committed a series of MFVAT, which is an open-end management investment company registered as such under the 1940 Act;
(iv) Such counsel does not know of, and has not made independent inquiry or investigation to ascertain the existence of, any litigation or government proceeding instituted or threatened against MFVAT or any of the Acquired Funds that could be required to be disclosed in the applicable Registration Statement and is not so disclosed;
(v) All actions required to be taken by MFVAT on behalf of the Acquired Funds to authorize this Plan and to effect the transactions contemplated hereby have been duly authorized by all necessary action on the part of MFVAT; and
(vi) None of the execution, delivery or performance of this Plan by MFVAT on behalf of the Acquired Funds violates any provision of its Declaration of Trust or By-laws, or the provisions of such other agreement or instruments as are specified in that opinion; this Plan is the legal, valid and binding obligation of MFVAT on behalf of the Acquired Funds and is enforceable against MFVAT on behalf of the Acquired Funds in accordance with its terms. In giving the opinions set forth above, counsel will rely on certificates of the officers of MFVAT with regard to matters of fact, and certain certifications and written statements of governmental officials with respect to the good standing of MFVAT. With respect to all matters of New York law, such counsel shall be entitled to rely on the opinion of Massachusetts counsel or New York counsel, as applicable, and may state that their opinion is subject to the same assumptions, qualifications and limitations with respect to such matters as are contained in the opinion of such Massachusetts counsel or New York counsel, as the case may be.
(l) That there shall be delivered to MFVAT an opinion, in form and substance reasonably satisfactory to it, of counsel employed or retained by SAST (who may be an officer of SAST or its investment adviser) with respect to the Acquiring Funds to the effect that, subject in all respects to the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other laws now or hereafter affecting generally the enforcement of creditors' rights:
(i) SAST is a business trust duly organized under the laws of the Commonwealth of Massachusetts, and is an existing business trust in good standing ;
(ii) SAST is authorized to issue an unlimited number of shares of beneficial interest of each Acquiring Fund, without par value. Each Acquiring Fund is further divided into three classes of shares designated as the Title Policy Acquiring Fund's Class 1, Class 2 and Class 3 shares, and an unlimited number of shares of beneficial interest, without par value, have been allocated and designated to the Acquiring Fund's Class 1 shares. Assuming that the initial shares of beneficial interest of each Acquiring Fund were issued in accordance with the 1940 Act, and the Public Parties have delivered any documents reasonably requested by Agreement and Declaration of Trust and By-laws of SAST, and that all other outstanding shares of the Title Company in order Acquiring Funds were sold, issued and paid for the Title Company to issue the Title Policy in accordance with the terms hereofof the Acquiring Funds' prospectuses in effect at the time of such sales, each such outstanding share of the Acquiring Funds is fully paid, non-assessable, freely transferable and has full voting rights;
(iii) Each Acquiring Fund is a series of SAST, which is an open-end management investment company registered as such under the 1940 Act;
(iv) The Public Parties have provided written confirmation Such counsel does not know of, and has not made independent inquiry or investigation to ascertain the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all existence of, any litigation or government proceeding instituted or threatened against SAST or any of the Public Parties’ respective obligations hereunder remain available Acquiring Funds that could be required to be disclosed in all respects as of the applicable Closing Date, to the extent Registration Statement and is not previously expendedso disclosed;
(v) There is no litigation pending or threatened with respect Each Acquiring Fund's shares to be issued pursuant to the Project Site terms of this Plan have been duly authorized and, when issued and sold as provided in this Plan for the consideration stated in this Plan, which (A) has resulted shall in a final order each event be at least equal to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the Statenet asset value per share, leased to the JDAthey will have been validly issued and fully paid and will be non-assessable, and rented no shareholder of any Acquiring Fund has any pre-emptive right to the Company, (B) would have a material impact on the ability of the Company subscribe for or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigationpurchase those shares;
(vi) All federal authorizations and the Wetland Permit actions required to be taken by §404 SAST on behalf of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order Acquiring Funds to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 authorize this Plan and to develop effect the Project in accordance with the Current Site Plan transactions contemplated hereby have been obtained, duly authorized by all necessary action on the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation part of the Comprehensive Grading Work by more than 120 daysSAST; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation None of the transactions contemplated execution, delivery or performance of this Plan by this Agreement, including SAST on behalf of the Rental Acquiring Funds violates any provision of its Agreement and all documents related Declaration of Trust or By-laws, or the provisions of any agreement or other instrument known to such counsel to which SAST is a party or by which SAST is otherwise bound; this Plan is the legal, valid and binding obligation of SAST on behalf of the Acquiring Funds and is enforceable against SAST on behalf of the Acquiring Funds in accordance with its terms. In giving the opinions set forth above, counsel will rely on certificates of the officers of SAST with regard to matters of fact, and certain certifications and written statements of governmental officials with respect to the Project Bondsgood standing of SAST.
(bm) The Public Parties’ obligation SAST's Registration Statement with respect to consummate the Closing is expressly conditioned upon Acquiring Funds' Class 1 shares to be delivered to the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company Acquired Funds' shareholders in accordance with this Plan shall have paid all fees and expenses of the Project Bonds as set forth hereinbecome effective, and all other fees and expenses no stop order suspending the effectiveness of the JDA as required by Section 3.6(c) hereof to be paid on such Registration Statement or any amendment or supplement thereto, shall have been issued prior to the Closing Date or shall be in effect at Closing; and, and no proceedings for the issuance of such an order shall be pending or threatened on that date.
(iiin) The Company and That each Acquiring Fund's shares to be delivered hereunder shall be eligible for sale by SAST with each state commission or agency with which such eligibility is required in order to permit the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation Acquiring Fund's shares lawfully to be delivered to each holder of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project BondsAcquired Funds' shares.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Sunamerica Series Trust)
Conditions Precedent to Closing. 7.1 Conditions to the Company's Obligations. --------------------------------------- The obligations of the Company with respect to a Purchaser hereunder required to be performed on the Closing Date shall be subject to the satisfaction or waiver, at or prior to the Closing, of the following conditions:
(a) The Company’s obligation to consummate representations and warranties of such Purchaser contained in this Agreement shall have been true and correct when made and, in addition, shall be repeated and true and correct in all material respects on and as of the Closing is expressly conditioned upon Date with the same force and effect as though made on and as of the Closing Date.
(b) Such Purchaser shall have performed in all material respects all obligations and agreements, and complied in all material respects with all covenants contained in this Agreement to be performed and complied with by such Purchaser at or prior to the Closing Date.
(c) Any applicable waiting period under the HSR Act with respect to the purchase by such Purchaser shall have expired or been terminated.
(d) The Company shall have obtained all necessary consents, waivers, authorizations and approvals of all Governmental Authorities and of all other Persons required in connection with the execution, delivery and performance of the Equity Documents or the consummation of the Issuance, such waivers to be satisfactory in form and substance to the Company.
(e) Such Purchaser shall have entered into the Registration Rights Agreement.
(f) The Shares to be purchased at the Closing shall be issued for an aggregate amount of no less than $600,000,000.00.
7.2 Conditions to Each Purchaser's Obligations. ------------------------------------------ The obligations of a Purchaser hereunder required to be performed on the Closing Date shall be subject to the satisfaction or waiver waiver, at or prior to the Closing, of the followingfollowing conditions:
(ia) All The representations and warranties of the Public Parties set forth Company contained in Section 5.1 above this Agreement (i) shall be have been true and correct when made and (ii) shall be (A) in the case of representations and warranties that are qualified as to materiality or Material Adverse Effect, true and correct and (B) in all other cases, true and correct in all material respects, in the case of clauses (A) and (B), as of the Closing Date with the same force and effect as if though made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;.
(iiib) The Title Company is irrevocably committed shall have performed in all material respects all of its obligations and agreements and complied in all material respects with all covenants contained in this Agreement to issue be performed and complied with at or prior to the Title Policy Closing Date.
(c) The Company shall have entered into the Registration Rights Agreement.
(d) The Company shall have filed the Certificate of Designation with the Secretary of State of the State of Delaware.
(e) Any applicable waiting period under the HSR Act with respect to the purchase by such Purchaser shall have expired or been terminated and the Public Parties no litigation arising therefrom shall have been commenced and remain outstanding.
(f) The Company shall have delivered any documents reasonably requested to such Purchaser a certificate executed on its behalf by a duly authorized representative, dated the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;effect that each of the conditions specified in paragraph (a) through (e) of this Section 7.2 has been satisfied.
(vg) There is no litigation pending No provision of any Applicable Law, injunction, order or threatened with respect to the Project Site decree of any Governmental Entity shall be in effect which (A) has resulted in a final order to the effect that of making the Project Site is subject to local zoning codes Transactions illegal or building ordinances while such Project Site is owned by shall otherwise restrain or prohibit the Stateconsummation of the Transactions.
(h) Such Purchaser shall have received an opinion of (i) H. ▇▇▇ ▇▇▇▇▇▇, leased to General Counsel of the JDACompany and (ii) ▇'▇▇▇▇▇▇▇▇ Graev & Karabell, and rented LLP, special counsel to the Company, in each case dated the Closing Date, and addressed to such Purchaser, covering the matters set forth in Exhibit D, in form and substance reasonably acceptable to the Purchaser.
(Bi) would Such Purchaser shall have received certificates representing the Securities purchased by such Purchaser concurrently with the Company's receipt of the Purchase Price for such Securities.
(j) There shall not have occurred (i) any event, circumstance, condition, fact, effect or other matter which has had or could reasonably be expected to have a material impact adverse effect (x) on the business, assets, financial condition, prospects, or results of operations of the Company and its Subsidiaries taken as a whole or (y) on the ability of the Company and its Subsidiaries to perform on a timely basis any material obligation under this Agreement or the Public Parties other Equity Documents or to perform their obligations hereunder consummate the Issuance contemplated hereby; or (other than litigation relating to development ii) any material disruption of or permitting material adverse change in financial, banking or capital market conditions.
(k) The Share Exchange Agreement shall be in full force and effect and there shall not have been any amendment or waiver of any of its material terms or conditions.
(l) The Company shall have delivered duly executed copies of the Project)Management Rights Agreements to the HMTF Funds.
(m) The Company shall have made all filings with, or (C) otherwise materially given all notices to, and adversely affects the ability of the Parties to develop the Project received all approvals from, all Governmental Authorities (including, without limitation, permitting)the Federal Communications Commission and state public utility commissions) required in connection with the consummation of the Transactions, as described herein; provided that with respect unless the failure to this subsection (C) to make such filings, give such notices or receive such approvals would not, individually or in the extent that (i) the State has assumed the responsibility and cost of defending any such litigationaggregate, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts have a Material Adverse Effect or a material adverse effect on the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; andTransactions.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 1 contract
Sources: Preferred Stock and Warrant Purchase Agreement (Liberty Media Corp /De/)
Conditions Precedent to Closing. The Commitments of the Lenders shall not become effective unless and until each of the following conditions precedent has been satisfied by the Company:
(a) The Company’s obligation the Administrative Agent shall have received the following, each in form and substance satisfactory to consummate the Closing is expressly conditioned upon the satisfaction or waiver Administrative Agent and each of the followingLenders:
(i) All representations and warranties of the Public Parties set forth in Promissory notes, if requested by any Lender pursuant to Section 5.1 above shall be true and correct as of the Closing Date as if made on the Closing Date;2.06.
(ii) No event of default beyond any applicable notice and cure periods on the part Certified copies of the Public Parties resolutions of the Board of Directors of the Company approving this Agreement, and of all documents evidencing other necessary corporate action and governmental approvals, including the NCUC Order and the SCPSC Order, with respect to this Agreement.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company, dated as of the date hereof, certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the other documents to be delivered hereunder.
(iv) A certificate of a Responsible Officer of the Company, dated as of the date hereof, certifying (i) the accuracy of the representations and warranties contained herein and (ii) that no event has occurred and is continuing hereunder as which constitutes a Default or an Event of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;Default.
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, Certified copies of all required governmental approvals and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;authorizations.
(vi) All federal authorizations and the Wetland Permit required by §404 Certified copy of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake restated charter and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation bylaws of the Comprehensive Grading Work by more than 120 days; andCompany.
(vii) The Company and Evidence satisfactory to the Public Parties Administrative Agent that the Existing Facilities shall have agreed upon been terminated and all amounts outstanding thereunder shall have been paid in full.
(viii) Favorable opinions of counsel for the Company, substantially in the forms of Exhibit D-1 and Exhibit D-2 hereto and as to such other matters as any Lender through the Administrative Agent may reasonably request.
(ix) A favorable opinion of King & Spalding LLP, counsel for the Administrative Agent, substantially in the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project BondsExhibit E hereto.
(b) The Public Parties’ obligation Any fees required to consummate be paid on or before the Closing is expressly conditioned upon Date shall have been paid by the satisfaction or waiver of the following:Company.
(ic) No event of default beyond any applicable notice and cure periods on Unless waived by the part of Administrative Agent, the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees fees, charges and expenses disbursements of counsel to the Administrative Agent in connection with the preparation and negotiation of this Agreement and the other documents to be delivered in connection herewith 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 Company and the Administrative Agent). Without limiting the generality of the Project Bonds as set forth hereinprovisions of Section 7.04, and all other fees and expenses for purposes of determining compliance with the JDA as required by conditions specified in this Section 3.6(c) hereof 3.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be paid on 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 Closing; andproposed Closing Date specifying its objection thereto.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 1 contract
Conditions Precedent to Closing. This Agreement and the obligation of each Lender to make Loans and of the LC Issuer to issue Facility LCs hereunder shall be subject to the satisfaction (or waiver) of the following conditions precedent: 12660163v2
(a) The CompanyArrangers and the Lenders shall have received (i) the Annual Financial Statements, the Quarterly Financial Statements and the Pro Forma Financial Statements and (ii) satisfactory financial statement projections through and including the Borrower’s obligation 2022 fiscal year, together with such information as the Administrative Agent and the Lenders shall reasonably request.
(b) The Arrangers and the Lenders shall have received a certificate from the Borrower’s chief financial officer that the Borrower and its Subsidiaries, after giving effect to consummate the Transactions to occur on the Closing is expressly conditioned upon Date and the satisfaction or waiver incurrence of Indebtedness related thereto, are Solvent, which certificate shall be in form and substance reasonably satisfactory to the Arrangers.
(c) The Administrative Agent and the Arrangers shall have received the following:
(i) All representations and warranties Copies of the Public Parties set forth articles or certificate of incorporation (or the equivalent thereof) of each Credit Party, in Section 5.1 above each case, together with all amendments thereto, and a certificate of good standing, each certified not more than 30 days prior to the Closing Date by the appropriate governmental officer in its jurisdiction of organization and accompanied by a certification by the Secretary or Assistant Secretary of such Credit Party that there have been no changes in the matters certified by such governmental officer since the date of such governmental officer’s certification.
(ii) Copies, certified by the Secretary or Assistant Secretary (or the equivalent thereof) of each Credit Party, in each case, of its by-laws and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which such Credit Party is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary (or the equivalent thereof) of each Credit Party which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of each such Credit Party authorized to sign the Loan Documents to which it is a party, upon which certificate the Administrative Agent and the Lenders shall be true entitled to rely until informed of any change in writing by the applicable Credit Party.
(iv) A certificate reasonably acceptable to the Administrative Agent signed by the chief financial officer of the Borrower and correct dated as of the Closing Date, certifying that as of the Closing Date and after giving effect to the Transactions to occur on such date (x) there exists no Default or Unmatured Default and (y) the representations and warranties contained in Article V are true and correct in all material respects (or, if qualified by materiality, “Material Adverse Effect” or like term, 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 shall have been true and correct in all material respects (or, if qualified by materiality, “Material Adverse Effect” or like term, in all respects) on and as of such earlier date). 12660163v2
(v) A written opinion (addressed to the Administrative Agent and the Lenders and dated as of the Closing Date) of each of (A) ▇▇▇▇▇▇ and ▇▇▇▇▇▇, P.A., counsel to the Credit Parties, (B) ▇▇▇▇▇ Lovells US LLP, Colorado counsel to the Credit Parties, and (C) ▇▇▇ ▇▇▇▇▇, counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(vi) Duly executed counterparts of this Agreement and the Guaranty from each of the Credit Parties party hereto or thereto and, in the case of this Agreement, from each Lender, the Departing Lender and the Administrative Agent (which requirement may in each case be satisfied by telecopy or electronic transmission of a signed signature page to this Agreement or the Guaranty, as the case may be).
(vii) Evidence satisfactory to the Administrative Agent that the Borrower has paid or, substantially simultaneously with the funding of any Advances on the Closing Date, will pay, to the Administrative Agent, the Arrangers, the Lenders, solely in the case of clause (y) below, the applicable Persons that are “Lenders” under the Existing Credit Agreement and, solely in the cause of clause (z) below, the Departing Lender, as applicable, (x) all fees and expenses due and payable on or prior to the Closing Date, including (A) the fees agreed to in the Fee Letters and (B) reimbursement or payment of all expenses required to be reimbursed or paid by the Borrower for which invoices have been presented no later than one Business Day prior to the Closing Date, (y) all accrued and unpaid interest and fees under the Existing Credit Agreement in respect of the Existing Revolving Loans and Existing Term Loans and all accrued and unpaid fees under Sections 2.5.1 and 2.24.4 of the Existing Credit Agreement (other than any accrued and unpaid interest owing to the Swing Line Lender in respect of the swing line loans previously made to the Borrower under the Existing Credit Agreement (the “Existing Swing Line Loans”), which interest shall be paid after the Closing Date in accordance with the terms of this Agreement) and (z) the principal amount of the Existing Revolving Loans and Existing Term Loans of the Departing Lender in accordance with Section 1.4.
(viii) At least two (2) Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities with respect to the Credit Parties reasonably requested by the Lenders in writing at least five (5) Business Days prior to the Closing Date under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act.
(ix) A Borrowing Notice in respect of the Advances to be made on the Closing Date;
(ii) No event . For purposes of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance determining compliance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company conditions specified in this Section 4.1, each Lender that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to signed this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with respect with, each document or other matter required thereunder to such pending be consented to or threatened litigation;
(vi) All federal authorizations and approved by or acceptable or satisfactory to a Lender unless the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties Administrative Agent shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable received notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or from such Lender prior to the Closing; andproposed Closing Date specifying its objection thereto.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 1 contract
Conditions Precedent to Closing. (a) The CompanyBuyer’s obligation to consummate acquire the Closing Premises is expressly conditioned upon the satisfaction or waiver on all of the following:
, any or all of which may be expressly waived by Buyer, in writing, at its sole option: (i) All Buyer shall not have notified Seller in writing on or prior to the Due Diligence Date that Buyer has decided to terminate the transaction contemplated by this Agreement pursuant to Section 14; (ii) the Premises shall be subject to no liens or encumbrances other than real estate taxes not yet payable, matters for which Tenant is or was responsible under the Lease and other matters approved or deemed approved by Buyer (collectively, the “Permitted Encumbrances”), (iii) all representations and warranties of the Public Parties set forth made by Seller in Section 5.1 above 11 shall be true and correct in all material respects on and as of the Closing Date, as if made on and as of such date, except to the extent that they expressly relate to an earlier date, and (iv) Seller shall have delivered all of the documents and other items required pursuant to Section 4(a) and shall have timely performed all other covenants, undertakings and obligations to be performed by Seller at or prior to the Closing.
(b) Seller’s obligation to assign, transfer and convey the Premises is conditioned on all of the following, any or all of which may be expressly waived by Seller, in writing, at its sole option: (i) all representations and warranties made by Buyer in this Agreement shall be true and correct in all material respects on and as of the Closing Date, as if made on and as of such date, except to the extent that they expressly relate to an earlier date, (ii) Buyer shall have delivered all of the documents and other items required pursuant to Section 4(b) and shall have performed all other covenants, undertakings and obligations to be performed by Buyer at or prior to the Closing, and (iii) the Title Company shall have received the Purchase Price in immediately available funds.
(c) Buyer, as tenant and Seller, as landlord, are parties to the Lease, pursuant to which Seller has leased the Premises to Tenant. The parties acknowledge and agree that the Lease shall be terminated at Closing. Buyer hereby acknowledges and agrees that (i) effective as of the Closing Date, Seller shall be released and discharged from any and all claims, liabilities, obligations and causes of action under or related to the Lease or the Premises, whether now or hereafter existing, known or unknown, and (ii) all indemnities in favor of Seller, as landlord under the Lease, and the other Indemnitees (as defined in the Lease), and all other provisions of the Lease that expressly survive the termination thereof, shall survive and shall be retained by Seller and such Indemnitees. In particular, Buyer, as tenant, acknowledges that (i) it has received from Seller a copy of that certain letter of representation from ▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.A. dated February 3, 2023 (the “Claim for Alleged Incident”) and hereby agrees that ▇▇▇▇▇’s obligation to defend, or cause its insurance carrier to defend, Seller against any actions related to the Claim for Alleged Incident and to indemnify Seller for any and all Claims (as defined in the Lease) related thereto, in each case pursuant to the terms of the Lease, shall remain in full force and effect notwithstanding the termination of the Lease as of the Closing Date as if made on the Closing Date;
and (ii) No event of default beyond any applicable notice it is responsible for all sales and cure periods rent tax that was payable on the part Basic Rent (as defined in the Lease) paid, and to be paid up to, and including, the Closing Date (including all penalties, interest and other amounts payable in connection therewith) (the “Tax Payment”), which Tax Payment is an obligation of tenant under the Lease that shall survive the termination of the Public Parties has occurred Lease and is continuing hereunder as shall survive the Closing Date hereunder. Buyer hereby agrees that it shall pay such Tax Payment in full on or before December 31, 2023 and shall provide Seller with evidence of such payment reasonably satisfactory to Seller promptly after such payment. Notwithstanding the foregoing, in the event that either the Title Company requires a holdback from the disbursement of the Closing Date;
full Purchase Price to Seller, or the applicable Florida taxing authority makes a direct claim, or files a lien, against Seller or any of its affiliates or any or of their respective assets as a result of the Tax Payment, then Buyer shall pay such Tax Payment (iii) The Title Company is irrevocably committed or provide funds to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue amount of any required holdback) on or before the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, in the case of a required holdback, or shall pay such Tax Payment to the extent not previously expended;
applicable taxing authority (vor post such bond or other indemnity as shall stay the collection action against Seller) There is no litigation pending or threatened with respect to within five (5) Business Days of demand from Seller in the Project Site which (A) has resulted in case of a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned claim by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bondstaxing authority.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Haverty Furniture Companies Inc)
Conditions Precedent to Closing. (a) The CompanyPURCHASER’s obligation obligations to consummate carry out the Closing is expressly conditioned upon terms of this Agreement and to complete its transactions contemplated under this Agreement are subject to the fulfillment to the satisfaction or waiver of Amgentech of each of the followingfollowing conditions at or prior to the Time of Closing:
A. Each of the Shareholders and SUGO (icollectively, the “SUGO Group”) All shall have complied with all of their respective covenants and agreements contained in this Agreement; and
B. The SUGO Group shall transfer, or will cause to be transferred, to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ – Amgentech, Inc Sixty (60%) or 278,212,899, whichever is greater of the issued and outstanding SUGO Shares; and
C. The representations and warranties of each of the Public Parties SUGO Group contained in this Agreement or contained in any certificates or documents delivered by any of them pursuant to this Agreement shall be completely true as if such representations and warranties had been made as of the Time of Closing. The conditions set forth above are for the exclusive benefit of Amgentech and may be waived by Amgentech in Section 5.1 above whole or in part at any time at or before the Time of Closing, as long as such conditions are waived in writing. Amgentech obligation to carry out the terms of this Agreement and to complete the transactions contemplated under this Agreement are subject to the fulfillment to SUGO’s satisfaction of each of the following conditions at or prior to the Time of Closing:
i. Amgentech shall have complied with all of its covenants and agreements contained in this Agreement; and
ii. The representations and warranties of Amgentech contained in this Agreement or contained in any certificates or documents delivered by it pursuant to this Agreement shall be completely true and correct as of the Closing Date in all material respects as if such representations and warranties had been made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing Amgentech as of the Closing Date; and
(ii) The Company D. Amgentech shall have paid all fees obtained from each named executive officer a letter of resignation effective with the Closing (in the form reasonably acceptable to Amgentech); and expenses PURCHASER shall have appointed persons nominated by Amgentech to its Board of Directors (the “Amgentech Representatives”); and
E. PURCHASER shall have obtained from each member of its Board of Directors, excluding the Amgentech Representatives, a letter of resignation from the Board of Directors of PURCHASER effective with the Closing (in the form reasonably acceptable to Amgentech); and
F. PURCHASER shall have received Board of Directors and shareholders approval for the amendment to the Articles of Incorporation and Bylaws (“Incorporation Documents”) satisfactory to Amgentech including the renaming of the Project Bonds as set forth herein, company and all other fees and expenses approval of this Share Exchange; and
G. PURCHASER shall have issued the JDA as required by Section 3.6(c) hereof to be paid on or prior Exchange Shares in accordance with this Agreement; and
H. PURCHASER shall have satisfied is obligations to the Closingtransfer agent such that shares may be freely issued; and.
(iii) The Company I. PURCHASER shall be current, through June 30, 2015, with its filing obligations with the SEC and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.OTC;
Appears in 1 contract
Sources: Agreement for the Exchange of Stock (CaerVision Global, Inc.)
Conditions Precedent to Closing. (a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) All representations and warranties of the Public Parties set forth in Section 5.1 above shall be true and correct as of the Closing Date as if made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested this transaction contemplated by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site this Agreement is subject to local zoning codes or building ordinances while such Project Site is owned by the Statesatisfaction, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and, of each of the following conditions, unless waived by Parties in writing:
a. Prior to July 31, 2018, the Seller shall provide adequate proof that the Option to Purchase in the Lease has been duly and properly exercised by the Seller and delivered to U.S. Bank.
(iii) The Company b. Prior to July 31, 2018, the Seller shall provide written proof of consent to the assignment of the Lease by U.S. Bank.
c. At the time of Closing, all of Seller's representations set forth in Section 11 shall be true and accurate.
d. At the Public Parties time of Closing, all of CITY's representations set forth in Section 12 shall be true and accurate,
e. Before Closing, CITY shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary received and reasonable for the consummation accepted assignment of the transactions contemplated leasehold interest and option to purchase rights under the Lease and Option Agreement effective as of January 31, 2004, by and between ▇▇▇▇▇ ▇▇▇▇▇▇ Productions, a California corporation ("REP") and U.S. Bank National Association ("US Bank"), as amended First Amendment dated May 28, 2013 (collectively, the "US Bank Agreement"). CITY acknowledges that: (i) REP will exercise its option under the US Bank Agreement to purchase the leased property therein before assigning such rights to the CITY, and (ii) US Bank consent is required for such assignment. Once assigned to the CITY, the closing for such purchase of the real property subject to the US Bank Agreement will be completed by the CITY and such closing is not a condition precedent to this Agreement.
f. Notwithstanding the assumption and assignment of the option rights under the US Bank Agreement by CITY in accordance with Section 7.c., including the Rental Agreement and all documents related CITY shall in connection with the assignment of such rights by REP, grant back to REP or its designee, a right of first refusal to purchase the relevant lots subject to the Project Bondsoptions, or such other contiguous land adjacent to the Property, in the event that the CITY decides to sell such property prior to commencing construction of any new parking facility on the property.
g. Except for any Permitted Exceptions, prior to Closing, Seller shall have caused any individual, firm, partnership, joint venture, trust, corporation, company, or government entity that possesses a lien interest in the Lease to release such liens against the Lease.
h. The City will provide parking and equipment access rights to Seller in accordance with the "Parking and Equipment Access Rights Agreement," to be executed at or prior to Closing, attached hereto as Exhibit B. Such Parking and Equipment Access Rights Agreement will: (i) lease to Seller a minimum of stalls for parking purposes, with the option to lease an additional stalls for parking purposes;
Appears in 1 contract
Sources: Purchase Agreement
Conditions Precedent to Closing. (a) The Company’s obligation respective obligations of each of the Company and the Purchasers to consummate the Closing is expressly conditioned upon shall be subject to the satisfaction or waiver waiver, if permissible under applicable law, on or prior to the Closing Date of the followingfollowing conditions:
(i) All representations no Governmental Entity shall have enacted, issued, promulgated, enforced or entered any judgment, order, law, rule or regulation which is then in effect and warranties has the effect of making the consummation of the Public Parties set forth in Section 5.1 above transactions contemplated hereby illegal or otherwise restraining or prohibiting consummation of the transactions contemplated hereby; and
(ii) the Transaction shall have closed.
(b) The obligations of each Purchaser to consummate the Closing shall be true subject to the satisfaction or waiver by such Purchaser, in its sole discretion and correct as of if permissible under applicable law, on or prior to the Closing Date as if made on of the following conditions:
(i) the Closing shall have occurred by the Outside Date;
(ii) No event of default beyond any applicable notice the representations and cure periods on the part warranties of the Public Parties has occurred Company contained in this Agreement shall be true and is continuing hereunder correct in all material respects at and as of the Closing DateClosing;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid performed, satisfied and complied in all fees material respects with all covenants, agreements and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as conditions required by Section 3.6(c) hereof this Agreement to be paid on performed, satisfied or complied with by it at or prior to the Closing; and
(iv) the Company shall have delivered a certificate of the Secretary or an Assistant Secretary of the Company in form reasonably acceptable to the Purchasers with respect to good standing, organizational documents, corporate authorization and good standing.
(iiic) The obligations of the Company to consummate the Closing shall be subject to the satisfaction or waiver by the Company, in its sole discretion and if permissible under applicable law, on or prior to the Public Parties Closing Date of the following conditions:
(i) all representations and warranties of the Purchasers contained in this Agreement shall be true and correct except as would not have agreed upon a material adverse effect on the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of Purchasers’ ability to consummate the transactions contemplated hereby; and
(ii) the Purchasers shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this AgreementAgreement to be performed, including the Rental Agreement and all documents related satisfied or complied with by it at or prior to the Project Bondsapplicable Closing.
Appears in 1 contract
Conditions Precedent to Closing. (a) The CompanyPurchaser’s obligation under this Agreement to consummate purchase the Premises on the Closing Date is expressly conditioned upon subject to the satisfaction or waiver fulfillment of each of the following:following conditions, subject, however, to the provisions of Section 9(c):
(i) All The representations and warranties of the Public Parties set forth in Section 5.1 above Seller contained herein shall be true true, accurate and correct in all material respects as of the Closing Date as if made on except to the Closing Dateextent they relate only to an earlier date;
(ii) No event Seller shall be ready, willing and able to deliver title to the Premises in accordance with the terms and conditions of default beyond any applicable notice this Agreement; and
(iii) Seller shall have delivered all the documents and cure periods on other items required pursuant to Section 10, and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by the part Seller at or prior to the Closing.
(b) Seller’s obligation under this Agreement to sell the Premises to Purchaser is subject to the fulfillment of each of the Public Parties has occurred following conditions, subject, however to the provisions of Section 9(c):
(i) The representations and is continuing hereunder warranties of Purchaser contained herein shall be true, accurate and correct in all material respects as of the Closing Date, except to the extent that they relate to an earlier date;
(ii) Purchaser shall have delivered the funds required hereunder and all the documents to be executed by Purchaser set forth in Section 11 and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by Purchaser at or prior to the Closing;
(iii) The Title Company All consents and approvals of governmental authorities and parties to agreements to which Purchaser is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested a party or by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company which Purchaser’s assets are bound that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened are required with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement shall have been obtained and all documents related copies thereof shall have been delivered to Seller at or prior to the Project Bonds.Closing;
(biv) The Public Parties’ obligation On or prior to consummate the Closing is expressly conditioned upon Date, (A) Purchaser shall not have applied for or consented to the satisfaction appointment of a receiver, trustee or waiver liquidator for itself or any of its assets unless the same shall have been discharged prior to the Closing Date, and no such receiver, liquidator or trustee shall have otherwise been appointed, unless same shall have been discharged prior to the Closing Date, (B) Purchaser shall not have admitted in writing an inability to pay its debts as they mature, (C) Purchaser shall not have made a general assignment for the benefit of creditors, (D) Purchaser shall not have been adjudicated a bankrupt or insolvent, or had a petition for reorganization granted with respect to Purchaser, (E) Purchaser shall not have filed a voluntary petition seeking reorganization or an arrangement with creditors or taken advantage of any bankruptcy, reorganization, insolvency, readjustment or debt, dissolution or liquidation law or statute, or filed an answer admitting the material allegations of a petition filed against it in any proceedings under any such law, or had any petition filed against it in any proceeding under any of the following:
(i) No event of default beyond any applicable notice and cure periods on foregoing laws unless the part of the Company has occurred and is continuing as of same shall have been dismissed, canceled or terminated prior to the Closing Date; and
(iiv) The Company Purchaser shall have paid all fees delivered the funds required under the Sale-Purchase Agreement also dated as of December 20, 2007 between the Seller and expenses the Purchaser regarding the sale of the Project Bonds as set forth hereinreal properties recorded [at page 82 of volume 1181 of Río Piedras Norte, property number 33,783] and all other fees and expenses of the JDA as required by Section 3.6(c) hereof documents to be paid on or prior to executed by the Closing; andPurchaser under said Sale-Purchase Agreement.
(iiic) The Company and In the Public Parties event that any condition contained in Section 9(a) or (b) is not satisfied, the party entitled to the satisfaction of such condition as a condition to its obligation to close title hereunder shall have agreed upon as its sole remedy hereunder the form of all customary documents, including without limitation right to elect to (i) waive such unsatisfied condition whereupon title shall close as provided in this Agreement or (ii) terminate this Agreement. In the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by event such party elects to terminate this Agreement, including this Agreement shall be terminated and neither party shall have any further rights, obligations or liabilities hereunder, except for the Rental Surviving Obligations, and except that if Purchaser terminates this Agreement because of a condition contained in Section 9(a) is not satisfied, then Purchaser shall be entitled to a return of the Downpayment subject to Section 24(d) and all documents related provided Purchaser is not otherwise in default hereunder. Nothing contained in this Section 9(c) shall be construed so as to bestow any right of termination upon a party for the failure of a condition to be satisfied unless such party is expressly entitled to the Project Bondssatisfaction of such condition as provided in Section 9(a) or (b).
Appears in 1 contract
Conditions Precedent to Closing. Bank shall not be obligated to make any of the Loans or incur any Letter of Credit Obligations, or to take, fulfill, or perform any other action under this Agreement, until the following conditions have been satisfied prior to Closing or waived in writing by Bank:
(a) The Company’s obligation Bank shall have received each of the Loan Documents, each duly executed by the appropriate parties and in form and substance satisfactory to consummate Bank;
(b) all of the assets supporting the initial Loans to be made and Letters of Credit to be issued, and the amount, if any, of the reserves to be established on the Closing is expressly conditioned upon the satisfaction or waiver Date, shall be sufficient in value to provide Borrower with Net Borrowing Availability of not less than 10% of the following:
Borrowing Base (iafter giving effect to such initial Loans, Letters of Credit and reserves), sufficient to pay Borrower’s accounts payable within thirty (30) All representations days of due date and warranties without any increase in Borrower’s other current liabilities above the average of those reflected on Borrower’s balance sheet for the Public Parties set forth in Section 5.1 above shall be true and correct as of the Closing Date as if made on three months preceding the Closing Date;
(iic) No event of default beyond any applicable notice and cure periods on the part payment by Borrower of the Public Parties has occurred fees, costs, and is continuing hereunder expenses of closing (including fees of counsel to Bank presented as of the Closing Date);
(iiid) The Title Company is irrevocably committed no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before any court, Governmental Authority or legislative body to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Dateenjoin, to the extent not previously expended;
(v) There is no litigation pending restrain or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project)prohibit, or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (includingobtain damages in respect of, without limitationor which is related to or arises out of, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending Agreement or any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop other Loan Document or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreementhereby or thereby and which, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation in Bank’s sole judgment, would make it inadvisable to consummate the Closing is expressly conditioned upon the satisfaction transactions contemplated by this Agreement or waiver any other Loan Document;
(e) Bank shall have completed its business and legal due diligence, including a roll-forward of its previous collateral audit, with results satisfactory to Bank;
(f) all of the following:representations and warranties of Borrower under this Agreement shall be true and correct, and Bank shall have received a certificate, dated as of the Closing Date, to that effect signed by an Authorized Signatory;
(ig) No event of default beyond any applicable notice and cure periods on no Material Adverse Effect shall have occurred since the part of the Company has occurred and is continuing as of most recent Financial Statement delivered to Bank prior to the Closing Date; and
(iih) The Company Bank shall have paid all fees received a Subordination Agreement executed by the appropriate Australian Bank in form and expenses substance satisfactory to Bank. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the Project Bonds as set forth herein, and all other fees and expenses conditions of the JDA as required this Section 2.1 has been complied with to Bank’s satisfaction or specifically waived in a writing by Section 3.6(c) hereof to be paid on or prior to the Closing; andBank.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 1 contract
Conditions Precedent to Closing. As a condition to Bank's obligation to close and fund the Loan and to proceed with the transactions contemplated herein, Borrower, at its expense, shall have satisfied, fulfilled or provided, to Bank's sole satisfaction, at or before the date hereof all of the conditions and items set forth below unless the satisfaction, fulfillment or provision thereof shall have been waived by Bank:
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver No portion of the followingProperty shall have been damaged by fire or other casualty and not repaired to the condition immediately prior to such casualty, and no condemnation or taking of the Property or any portion thereof shall be pending or threatened;
(b) Bank shall have received all duly executed, and acknowledged if necessary, Bank Loan Documents, Borrower Documents and Collateral Documents, including originals of all of the Collateral Notes and all amendments and modification thereto, and all other documents to be delivered and/or executed by third parties shall have been delivered and/or executed, and all of the same shall be in form and substance acceptable to Bank;
(c) The security interests in all personal property described in the Collateral Documents shall have been, subject to recording of any financing statements, duly perfected and shall constitute valid and enforceable first priority liens and security interests in such property,
(d) A Loan Fee in the amount of $7,600.00 shall have been paid to Bank;
(e) No Event of Default or Conditional Default shall have occurred and be continuing under this Agreement or any of the other Bank Loan Documents;
(f) No default shall have occurred and be continuing under any of the Senior Loan Documents or any of the Tenant Leases;
(g) Bank shall have received the most recent financial statements of Borrower as required by SECTION 7.1:
(h) Bank shall have received a written opinion or opinions of counsel to Borrower addressed to Bank in form and scope satisfactory to Bank and its counsel;
(i) Bank shall have received or be reimbursed for all of Bank's reasonable out-of-pocket expenses incurred in connection with the Loan, including, but not limited to, the reasonable fees and expenses of Bank's legal counsel;
(j) All of the representations and warranties of the Public Parties Borrower as set forth in Section 5.1 above Article VIII hereof shall be true true, correct and correct as of the Closing Date as if made on the Closing Dateaccurate in all material respects; Documents;
(iik) No event of default beyond any applicable notice Bank shall have received, reviewed and cure periods on approved the part of Collateral Loan
(l) Bank shall have received commitments for the Public Parties has occurred and is continuing hereunder as of the Closing DateTitle Policies;
(iiim) The Title Company is irrevocably committed to issue Bank shall have received and reviewed all of the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance connection with the terms hereofacquisition of the Collateral Loan Documents by Borrower;
(ivn) The Public Parties Borrower and, if necessary, each of the Collateral Borrowers, shall have provided written confirmation executed and delivered to Bank letters addressed to each of the Senior Lenders and/or the Tenants, as the case may be, directing payment to Bank of all sums to be paid by the Tenants under the Tenant Leases, subject to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all rights of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 daysSenior Lenders; and
(viio) The Company and the Public Parties Bank shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary received and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement reviewed such other materials and all documents related to the Project Bondsas Bank may reasonably require.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 1 contract
Sources: Loan Agreement (DVL Inc /De/)
Conditions Precedent to Closing. The Lender has entered into this Agreement in reliance upon the Authority’s representations and agreements herein and the performance by the Authority of its obligations hereunder, both as of the date hereof and as of the date of Closing. The Lender’s obligations under this Agreement are and shall be subject to the following further conditions:
(a) The Company’s obligation at the time of Closing, the Documents have been duly adopted or executed and delivered by the parties thereto and shall be in full force and effect and the Documents shall not have been amended, modified or supplemented, except as may have been agreed to consummate in writing by the Closing is expressly conditioned upon Lender, and the satisfaction or waiver Authority shall have duly adopted and there shall be in full force and effect such resolutions as, in the opinion of Bond Counsel, shall be necessary in connection with the transactions contemplated hereby and thereby;
(b) at the Closing, the Lender shall receive in addition to the Documents, the following:
(i1) All (A) the approving opinion, dated the date of Closing, in form and substance satisfactory to the Lender, of Bond Counsel; and (B) the opinion of the Authority Counsel and the County Attorney, in the forms attached hereto as Exhibit B and Exhibit C, with such changes in such opinion as Bond Counsel and the Lender shall approve;
(2) Such additional legal opinions, certificates, proceedings, instruments, and other documents, as the Lender or Bond Counsel may reasonably request to evidence (A) compliance by the Authority with legal requirements relating to the issuance of the Bond or the representations set forth in the Tax and Non-Arbitrage Certificate relating to the Bond, (B) the truth and accuracy, as of the date of Closing, of all representations herein contained, and (C) the due performance or satisfaction by the Authority at or prior to such date of all agreements then to be performed and all conditions then to be satisfied as contemplated under this Agreement; and
(3) the Authority Resolution and the County Resolution, each approving the terms of this Agreement and authorizing this financing. If the Authority shall be unable to satisfy the conditions to the Lender’s obligations contained in this Agreement or if the Lender’s obligations shall be terminated for any reason permitted by this Agreement, this Agreement shall terminate, and neither the Authority nor the Lender shall have any further obligations hereunder, except that the representations and warranties of the Public Parties Authority set forth in Section 5.1 above shall be true and correct 2 herein (as of the Closing Date as if made on the Closing Date;
(iidate made) No event of default beyond any applicable notice will continue in full force and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bondseffect.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions Precedent to Closing. The effectiveness of this Agreement is subject to the satisfaction on the Closing Date of the following conditions:
(a) The the Company and each Guarantor shall have duly and validly executed and delivered to the Administrative Agent this Agreement;
(b) the Administrative Agent shall have received on behalf of the Banks from Counsel for the Company’s obligation to consummate , its opinion, dated the Closing is expressly conditioned upon Date, substantially in the satisfaction or waiver form attached hereto as Exhibit 7.01(b);
(c) the Administrative Agent shall have received on behalf of the following:Banks an Officer's Certificate, dated the Closing Date, substantially in the form attached hereto as Exhibit 7.01(c);
(id) All no Default shall have occurred and be continuing or shall occur after giving effect to the Company's execution of this Agreement;
(e) after giving effect to the Company's execution of this Agreement, the representations and warranties of made by the Public Parties set forth Company in Section 5.1 above Article VI shall be true on and correct as of the Closing Date as if made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iiif) The Title no material adverse change shall have occurred in the business, properties, operations or financial condition of the Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereofits Subsidiaries on a consolidated basis since September 30, 1996;
(ivg) The Public Parties there shall not exist any litigation or regulatory proceedings or other legal or regulatory development, actual or threatened, that, in the good faith judgment of the Banks, could reasonably be expected to have provided written confirmation to a material and adverse effect on the business, properties, operations or financial condition of (i) the Company and its Subsidiaries taken as a whole or (ii) NewCity Communications; provided that all funds allocated by for purposes of this clause (g), any litigation or regulatory proceeding or other legal or regulatory development shall be deemed to have a material and adverse effect as contemplated above if, after giving effect to such proceeding or development on a pro forma basis over the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Datesucceeding twelve month period, to the extent not previously expendeda Default would occur hereunder;
(vh) There is no litigation pending or threatened with respect the Administrative Agent shall have received from the Company certificates of appropriate officials as to the Project Site which (A) has resulted existence and good standing of the Company in a final order to its jurisdiction of incorporation and any and all jurisdictions where the effect that Property owned or the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned business transacted by the State, leased Company makes such qualification necessary and where the failure to the JDA, and rented to the Company, (B) be so duly qualified would have a material impact and adverse effect on the ability business, properties, operations or financial condition of the Company and its Subsidiaries on a consolidated basis or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by perform its obligations under this Agreement, including the Rental Agreement all in form and all documents related substance satisfactory to the Project Bonds.
(b) The Public Parties’ obligation to consummate Administrative Agent and counsel for the Closing is expressly conditioned upon the satisfaction or waiver of the following:Administrative Agent;
(i) No event the Administrative Agent shall have received all such information as the Administrative Agent shall request concerning the insurance maintained by the Company described in Section 6.15 hereof;
(j) the Administrative Agent shall have received copies of default beyond any applicable notice and cure periods on the part NewCity Merger Agreement, duly certified by an officer of the Company has occurred that such agreements are in the form as filed with the Securities and is continuing as of the Closing Date; andExchange Commission;
(iik) The Company the Banks shall be satisfied as to the absence of litigation related to the Transactions which could materially adversely affect their rights or interests in connection with this Agreement;
(l) the Administrative Agent shall have paid received all fees and expenses of other amounts due and payable to the Project Bonds as set forth herein, Administrative Agent and all other fees and expenses of to the JDA as required by Section 3.6(c) hereof to be paid Banks on or prior to the Closing; and.
Closing Date, including, without limitation, (iiii) The Company such fees and amounts due and payable pursuant to the Public Parties shall have agreed upon terms and conditions set forth in the form Agents' Fee Letters and (ii) to the extent invoiced, reimbursement or payment of all customary documents, including without limitation out-of-pocket expenses required to be reimbursed or paid by the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project BondsCompany hereunder.
Appears in 1 contract
Sources: Credit Agreement (Cox Radio Inc)
Conditions Precedent to Closing. (a) The Company’s obligation respective obligations of each Party and the Company to consummate the transactions contemplated by this Agreement to occur at the Closing is expressly conditioned upon shall be subject to the satisfaction or waiver of the followingfollowing conditions on or prior to the Closing Date:
(ia) All no statute, rule, regulation, executive order, decree, or preliminary or permanent injunction shall have been enacted, entered, promulgated or enforced by any U.S. state or federal or foreign court of competent jurisdiction or other Governmental Authority which prohibits consummation of the transactions contemplated by the Joint Venture Agreements, whether temporary, preliminary or permanent; provided that the Parties hereto shall use their reasonable efforts to have any such order, decree or injunction vacated;
(b) all waiting periods and other approvals applicable to the transactions contemplated by the Joint Venture Agreements under the HSR Act, if applicable, shall have been terminated or expired and all other Governmental Approvals necessary for consummation of the transactions contemplated by Joint Venture Agreements shall have been obtained or made and be in effect at the Closing Date, except for any such Governmental Approvals, the failure of which to obtain or make would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; provided that no Party shall be required to commence or defend any Action before any Governmental Authority in order to satisfy this condition;
(c) each of the parties to each of the Joint Venture Agreements (other than this Agreement) shall have duly delivered to each of the parties thereto each of the Joint Venture Agreements (other than this Agreement) to which it is a party;
(d) the representations and warranties of each other Party and the Public Parties set forth Company contained in Section 5.1 above this Agreement that are qualified as to materiality or words of similar import shall be true and correct in all material respects, and those not so qualified shall be true and correct in all respects, in each case, as of the date hereof and as of the Closing Date as if made on at the Closing Date;
(ii) No event of default beyond any applicable notice , except for those representations and cure periods on the part of the Public Parties has occurred and is continuing hereunder warranties which are made as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy a specific date, which representations and the Public Parties warranties shall have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available been true and correct in all material respects or true and correct in all respects, as the case may be, as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 daysdate; and
(viie) The Company and the Public Parties each other party hereto shall have agreed upon the form of performed or complied with in all customary documents, including without limitation the Definitive Documents, necessary material respects each covenant and reasonable for the consummation of the transactions contemplated by agreement required in this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(b) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company shall have paid all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on performed by it at or prior to the Closing; and.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 1 contract
Sources: Contribution and Unit Holders Agreement (Amc Entertainment Inc)
Conditions Precedent to Closing. Purchaser's Conditions Precedent prior to the Closing Date
4.1 The obligations of the Purchaser under this Agreement to Close are further subject to the following conditions for the exclusive benefit of the Purchaser to be fulfilled in all material aspects in the reasonable opinion of the Purchaser or in the Purchaser's discretion to be waived by the Purchaser prior to or at the Closing:
(a) The the Company’s obligation , the Guarantors and the Vendor shall have complied with all warranties, representations, covenants and agreements herein agreed to consummate the Closing is expressly conditioned upon the satisfaction be performed or waiver caused to be performed by any of the following:
(i) All representations and warranties of the Public Parties set forth in Section 5.1 above shall be true and correct as of the Closing Date as if made them on or before the Closing Date;
(b) the Purchaser shall have obtained TSX Venture Exchange acceptance of the transactions contemplated hereby;
(c) there shall have occurred no material loss or destruction of or damage to the Company, any of its assets, any of the Company's Business or the Purchased Shares in the reasonable opinion of the Purchaser;
(d) no action or proceeding at law or in equity shall be pending or threatened by any person, company, firm, governmental authority, regulatory body or agency to enjoin or prohibit:
(i) the purchase or transfer of any of the Purchased Shares contemplated by this Agreement or the right of the Vendor to dispose of any of the Purchased Share;
(ii) No event of default beyond any applicable notice and cure periods on the part transfer of the Public Parties Loan; or
(iii) the right of the Company to conduct its operations and carry on, in the normal course, its business and operations as it has occurred carried on in the past;
(e) the Company and the Vendor will cause the Company until Closing, during normal business hours, and limited to the verification only of the Vendor's and the Company's representations herein:
(i) make available for inspection by the counsel, auditors and representatives of the Purchaser, at such location as is appropriate, the Company's books, records, contracts, documents, correspondence and other written materials, and afford such persons every reasonable opportunity to make copies thereof and take extracts therefrom at the sole cost of the Purchaser, provided such persons do not unduly interfere in the operations of the Company;
(ii) authorize and permit such persons at the risk and the sole cost of the Purchaser, and only if such persons do not unduly interfere in the operations of the Company, to attend at all of its places of business, inspect its assets and financial records; and
(iii) require the Company's management personnel to respond to all reasonable inquiries concerning the Company's Business, its assets or the conduct of its business relating to its liabilities and obligations;
(f) the delivery by the Company and Vendor to the Purchaser of an opinion of the counsel for the Company, in a form satisfactory to the Purchaser's counsel (respecting subparagraphs (i) to (v) below), dated as at the date of Closing together with the certificate of one officer of the Company (regarding the facts set out in subparagraphs (vi) and (vii)), to the effect that:
(i) the Company is a corporation duly incorporated under the laws of its jurisdiction of incorporation, is validly existing and is continuing hereunder in good standing with respect to all statutory filings required by the applicable corporate laws;
(ii) the Company has the requisite corporate power, authority and capacity to own and use all of its assets and to carry on its business as presently conducted by it;
(iii) the Vendor has taken all necessary proceedings to sell and transfer all the Purchased Shares under this Agreement;
(iv) the number of authorized and issued shares in the share capital of the Company are as warranted by the Company and the Vendor, and the Purchased Shares has been duly authorized, validly issued and outstanding as fully paid and non-assessable;
(v) all necessary steps and corporate proceedings have been taken by the Company and the Vendor to permit the Purchased Shares to be duly and validly transferred to and registered in the name of the Purchaser as at the Closing Date;
(iiivi) The Title Company is irrevocably committed to issue that the Title Policy Company's representations and the Public Parties have delivered any documents reasonably requested by Schedules in this Agreement (as updated) are true and correct on the Title Company in order for Closing Date and that based on actual knowledge and belief, the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all officers know of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Dateno claims, to the extent not previously expended;
(v) There is no litigation judgments, actions, suits, litigation, proceedings or investigations, actual, pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the Statethreatened, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of against either the Company or the Public Parties Vendor which might materially affect either the Company, its assets or the Company's Business or which could result in any material liability to perform their obligations hereunder (other than litigation relating to development or permitting either of the Project)Company, its assets or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 daysCompany's Business; and
(vii) The Company as to all other legal matters of a like nature pertaining to the Vendor, the Company, its assets, the Company's Business and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of to the transactions contemplated by hereby as the Purchaser or the Purchaser's counsel may require on reasonable notice.
4.2 The obligations of the Vendor under this Agreement, including the Rental Agreement and all documents related to Close are further subject to the Project Bonds.following conditions for the exclusive benefit of the Vendor to be fulfilled in all material aspects in the reasonable opinion of the Vendor or in the Vendor's discretion, to be waived by the Vendor prior to or at the Closing:
(a) the Purchaser shall have complied with all warranties, representations, covenants and agreements herein agreed to be performed or caused to be performed by the Purchaser on or before the Closing Date;
(b) The Public Parties’ obligation there has occurred no material loss or destruction of or damage to consummate the Closing is expressly conditioned upon the satisfaction Purchaser's business or waiver of the followingmaterial assets;
(c) no action or proceeding at law or in equity shall be pending or threatened by any person, company, firm, governmental authority, regulatory body or agency to enjoin or prohibit:
(i) No event of default beyond any applicable notice and cure periods on the part issuance of the Company has occurred and is continuing as of the Closing DateSonic Shares; andor
(ii) The Company shall have paid all fees and expenses the right of the Project Bonds Purchaser to conduct its operations and carry on, in the normal course, its business and operations as set forth herein, and all other fees and expenses it has carried on in the past;
(d) an officer of the JDA as required by Section 3.6(cPurchaser has provided a certificate substantially similar to that referred to in 4.1(f)(vi) hereof to be paid on or prior to the Closing; andabove.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 1 contract
Sources: Share Purchase Agreement (Sonic Environmental Solutions Inc/Can)
Conditions Precedent to Closing. SECTION 7.1. Conditions to the Company's Obligations. The obligations of the Company hereunder required to be performed on each Closing Date with respect to the Purchaser shall be subject, at its election, to the satisfaction or waiver (which waiver, if so requested by the Purchaser, shall be made in writing), at or prior to the Closing occurring on such Closing Date, of the following conditions:
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) All representations and warranties of the Public Parties set forth Purchaser contained in Section 5.1 above this Agreement shall be true and correct in all material respects on and as of the Closing Date as if made on the such Closing Date;.
(iib) No event of default beyond any applicable notice The Purchaser shall have performed in all material respects all obligations and cure periods on agreements, and complied in all material respects with all covenants, contained in this Agreement, to be performed and complied with by the part of the Public Parties has occurred and is continuing hereunder as of the Purchaser at or prior to such Closing Date;.
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vic) All federal authorizations material governmental and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are regulatory approvals and clearances and all third-party consents necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreementthe Documents to occur on such Closing Date shall have been obtained and shall be in full force and effect, including the Rental Agreement consummation of such transactions does not and all documents related will not contravene any Applicable Law, except to the Project Bondsextent any contravention or contraventions, individually or in the aggregate, could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(d) The Purchaser shall have delivered to the Company a certificate, executed by the Purchaser or on its behalf by a duly authorized representative, dated as of such Closing Date, certifying that each of the conditions specified in this Section 7.1 has been satisfied with respect to the Purchaser.
(e) All documents, instruments, agreements and arrangements relating to the transactions contemplated by the Documents shall be reasonably satisfactory to the Company, shall have been executed and delivered by the parties thereto and no party to any of the foregoing (other than the Company) shall have breached any of its material obligations thereunder.
SECTION 7.2. Conditions to The Purchaser's Obligations. The obligations of the Purchaser hereunder required to be performed at each Closing shall be subject, at its election, to the satisfaction or waiver (which waiver, if so requested by the Company, shall be made in writing), at or prior to the Closing, of the following conditions:
(a) The representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects when made and on and as of such Closing Date.
(b) The Public Parties’ obligation Company shall have performed in all material respects all obligations and agreements, and complied in all material respects with all covenants, contained in this Agreement and the other Documents, to consummate be performed and complied with by it at or prior to such Closing Date, and there shall exist no Event of Default (as defined in the Closing is expressly conditioned upon Credit Agreement) under the satisfaction or waiver of the following:Credit and Security Agreements.
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(iic) The Company shall have paid all fees entered into or caused to become effective such agreements and expenses governing documents as the Purchaser may deem reasonably appropriate to effect the provisions of the Project Bonds as set forth hereinVoting Agreement, and all other fees each of such agreements and expenses documents shall be in full force and effect.
(d) The Company's Board of Directors shall consist of not more than 11 directors. If immediately following the subject Closing, the Purchaser would beneficially own securities of the JDA Company that constitute, or if exercised, exchanged or converted into Common Stock would constitute, at least 33 1/3% of the aggregate issued and outstanding Common Stock, provided that the Purchaser has given notice to the Company at least two Business Day's prior to a Closing (without duplication) of its Purchaser Nominees, the Company shall have appointed a total of six of such Purchaser Nominees (or such lessor number as required provided by Section 3.6(cthe Purchaser) hereof to serve as members of the Company's Board of Directors.
(e) All Documents and all documents, instruments, agreements and arrangements relating to the transactions contemplated by the Documents shall be paid reasonably satisfactory to the Purchaser, shall have been executed and delivered by the parties thereto, be in full force and effect and no party to any of the foregoing (other than the Purchaser) shall have breached any of its material obligations thereunder.
(f) (i) Since December 31, 1999, no change, occurrence or development shall have occurred, been threatened or become known to the Purchaser that could reasonably be expected to have a Material Adverse Effect, (ii) the Purchaser shall not have become aware of any information or other matter relating to the Company (x) of which the Company (but not the Purchaser) had knowledge on or prior to the Closingdate of this Agreement, (y) that, in the Purchaser's reasonable judgment, is inconsistent with any information or other matter relating to the Company disclosed to the Purchaser by the Company or any of its representatives prior to the date of this Agreement, and (z) would have been viewed by the Purchaser, in its reasonable judgment, as having materially and adversely altered the total mix of information made available to the Purchaser prior to the date of this Agreement. For purposes of this Section 7.2(f), the Company shall be deemed to have "knowledge" of a particular fact or other matter if (I) any individual who is serving, or who has at any time served, as a director, officer or management-level employee of the Company is actually aware of such fact or other matter; andor (II) a prudent individual serving as a director, officer or management-level employee of the Company could be expected to discover or otherwise become aware of such fact or other matter in the diligent exercise of his or her duties in such capacity. There shall have been no material adverse development in any pending litigation that in the reasonable good faith judgment of the board of directors of the Purchaser, after consultation with legal counsel, could reasonably be likely to result in a material adverse judgment against the Company resulting in damages (after taking into account any recoveries under available insurance) in an amount in excess of $3,000,000.
(iiig) The Since December 31, 1999, the business of the Company and the Public Parties shall have agreed upon been operated in compliance with all Applicable Laws, except where the form failure to do so could not reasonably be expected to have a Material Adverse Effect.
(h) There shall be no litigation, proceeding or other action seeking an injunction or other restraining order, damages or other relief from a Governmental Authority pending or threatened which, in the reasonable judgment of all customary documentsthe Purchaser, including without limitation the Definitive Documents, necessary and reasonable for would materially adversely affect the consummation of the transactions contemplated by the Documents on the terms contemplated hereby and thereby and there shall be no litigation, proceeding or other action (including, without limitation, relating to environmental matters or the Benefit Plans) pending or threatened against the Company or its Subsidiaries which could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(i) During the seven-calendar-day period ending on such Closing Date, (A) trading in securities generally on the New York Stock Exchange or the American Stock Exchange or the over-the-counter market shall not have been suspended and minimum prices shall not have been established on either of such exchanges or such market by such exchange or by the Commission, and (B) a general banking moratorium shall not have been declared by Federal or New York or California authorities.
(j) All registration rights agreements with the Company shall have been amended to provide that no other person will exercise any demand or piggy back registration rights without the prior written consent of the Purchaser.
(k) All governmental and regulatory approvals and clearances and all third-party consents necessary for the consummation of all of the transactions contemplated by the Documents to occur on such Closing Date shall have been obtained and shall be in full force and effect, and the Purchaser shall be reasonably satisfied that the consummation of such transactions does not and will not contravene any Applicable Law, except to the extent any contravention or contraventions, individually or in the aggregate, could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(l) The Company shall have delivered to the Purchaser a certificate, executed by it or on its behalf by a duly authorized representative, dated as of such Closing Date, certifying that each of the conditions (other than any condition the fulfillment of which is subject to the reasonable satisfaction of the Purchaser) specified in this AgreementSection 7.2 has been satisfied.
(m) Sidley & Austin, including counsel to the Rental Company, shall have delivered to the Purchaser an opinion, dated such Closing Date, addressed to the Purchaser, substantially in the form attached as Exhibit J hereto.
(n) The Purchaser shall have received delivery of the Securities as set forth hereunder.
(o) The Company shall have delivered to the Purchaser certificates of the appropriate public officials to the effect that each of the Purchaser and its Subsidiaries is a validly existing corporation in good standing in its jurisdiction of organization dated not more than 5 days prior to the Closing Date.
(p) The Company shall have delivered to the Purchaser a certificate of the Secretary of the Company (i) certifying that a true and correct copy of the Charter, Bylaws and all resolutions of the Board of Directors authorizing the execution and delivery of this Agreement and each Document to which the Company is a party and authorizing the performance by the Company of the transactions contemplated hereby and thereby is attached thereto and (ii) containing the incumbency and specimen signature of each of the officers of the Company.
(q) The Company shall have taken all documents related to necessary action so that at least two thirds of the Project BondsCompany's then current Board of Directors shall have approved the election of the Purchaser Nominees.
Appears in 1 contract
Sources: Purchase Agreement (Peapod Inc)
Conditions Precedent to Closing. 12.1 The obligations of Seller to deliver title to the Property and to perform the other covenants and obligations to be performed by Seller on the Closing Date shall be subject to the following conditions (all or any of which may be waived, in whole or in part, by Seller):
(a) The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) All representations and warranties of the Public Parties set forth in Section 5.1 above made by Purchaser herein shall be true and correct in all respects with the same force and effect as of the Closing Date as if though such representations and warranties had been made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;.
(iiib) Purchaser shall have delivered to Seller all of the documents provided herein for said delivery.
12.2 The obligations of Purchaser to accept title to the Property and to perform the other covenants and obligations to be performed by Purchaser on the Closing Date shall be subject to the following conditions (all or any of which may be waived, in whole or in part, by Purchaser):
(a) The representations and warranties made by Seller herein shall be true and correct in all respects with the same force and effect as though such representations and warranties had been made on and as of the Closing Date.
(b) Seller shall have performed all covenants and obligations undertaken by Seller herein in all respects and complied with all conditions required by this Agreement to be performed or complied with by it on or before the Closing Date.
(c) The Title Company is irrevocably committed unconditionally prepared to issue the to Purchaser a Title Policy and meeting the Public Parties requirements set forth in Section 4 hereof for an "insurable title".
(d) Seller shall have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform Purchaser all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such Project Site is owned by the State, leased to the JDA, and rented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; documents provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of competent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable herein for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bondssaid delivery.
(be) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No event of default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date; and
(ii) The Company Property shall have paid be in material compliance with all fees and expenses of the Project Bonds as set forth herein, and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or prior to the Closing; andEnvironmental Laws.
(iii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Mack Cali Realty Corp)