Conditions Precedent to Closing. The Closing and the initial disbursement of the Loans shall be subject to the following conditions precedent: (a) The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative Agent. (b) No Default or Event of Default shall have occurred and be continuing. (c) All representations and warranties contained herein shall be true and correct in all material respects at the Closing Date. (d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request. (e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers. (f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request. (g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto. (h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it. (i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 3 contracts
Sources: Loan and Security Agreement (Global Defense Technology & Systems, Inc.), Loan and Security Agreement (Global Defense Technology & Systems, Inc.), Loan and Security Agreement (Global Defense Technology & Systems, Inc.)
Conditions Precedent to Closing. The Closing and the initial disbursement of the Loans Date This Agreement shall be subject to become effective at such time as the following conditions precedentprecedent 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) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) The This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have been appropriately completedperformed and complied with all covenants, duly executed agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by the parties thereto, recorded where necessary and delivered to the Administrative Agentsuch Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the 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 have occurred and exist on the Closing Date, or would exist after giving effect to the Loans to be continuingmade on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(cd) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the 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.
(e) The Borrower shall have paid all fees and expenses of the Agent 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 insurance coverage as required by the Agreement.
(g) 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 representations proceedings taken in connection with the execution of this Agreement, all other Loan Documents and warranties contained herein all documents and papers relating thereto shall be 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 correct complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date 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; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The 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 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 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 material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, 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 transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the 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 material respects at 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.
(dw) All legal matters incident The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the 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 and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be reasonably satisfactory deemed to be a representation and warranty made by the Borrower to the Administrative Agenteffect 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 Borrowers agree 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 Administrative Agent an executed counterpart of this Agreement was made by such additional documents Lender independently and certificates relating without reliance on the Agent or any other Lender as to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 satisfaction of any state condition precedent set forth in which the Borrowers or the Holding Company are incorporatedthis Section 10.1, and (5iii) all documents sent to such additional supporting documents as the Administrative Agent Lender for approval, consent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance satisfaction were acceptable to itsuch Lender.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
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. The Closing and the initial disbursement (a) Notwithstanding any other provision of this Agreement or any of the Loans other Transaction Documents, the obligation of the Purchaser to consummate the Closing shall be subject to the satisfaction, at or prior to the Closing, of each of the following conditions precedent:(any of which may be waived in whole or in part by the Purchaser):
(ai) The Loan Documents There shall have been appropriately completednot be in force any order or decree, duly executed statute, rule or regulation by any Governmental Authority restraining, enjoining or prohibiting the parties thereto, recorded where necessary and delivered to consummation of the Administrative AgentClosing.
(bii) No Default or Event Each of Default shall have occurred and be continuing.
(c) All the representations and warranties of the Company contained herein in this Agreement and the other Transaction Documents to which the Company is a party shall be true and correct in all material respects at as of the Closing Date.
(d) All legal matters incident to except that any such representation or warranty which speaks, by its terms, as of a specific date or time other than the Loans Closing, shall be reasonably satisfactory to the Administrative Agenttrue and correct as of such date), and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit covenants and agreements of the Lenders, in the Collateral, termination statements shall have been filed Company to be performed or complied with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies Company as of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days prior to the Closing Date, from shall have been performed or complied with by the appropriate state official of any state Company in which the Borrowers or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may requestall material respects.
(giii) The Administrative Agent Company shall have received delivered the certificates and the other documents (lif any) a Borrowing Base Certificaterequired to be delivered by it pursuant to Section 2(b)(ii) in accordance with the provisions thereof.
(b) Notwithstanding any other provision of this Agreement or any of the other Transaction Documents, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements obligation of the Company for to consummate the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect Closing shall be subject to the Transaction 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 Closing.
(ii) Each of the representations and warranties of the Purchaser contained in this Agreement and the initial disbursement of other Transaction Documents to which the Loans, Purchaser is a party shall be true and certifying that no Default or Event of Default exists correct in all material respects as of the Closing DateDate (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), nor would any Default and each of the covenants and agreements of the Purchaser to be performed or Event complied with by the Purchaser as of Default occur after giving effect theretoor prior to the Closing shall have been performed or complied with by the Purchaser in all material respects.
(hiii) The Administrative Agent 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 a field examination report of the Collateral documents required to be received by the Company pursuant to Section 2(b)(ii) in form and substance acceptable to itaccordance with the provisions thereof.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 3 contracts
Sources: Purchase Agreement (Horizon Lines, Inc.), Purchase Agreement (Horizon Lines, Inc.), Purchase Agreement (Horizon Lines, Inc.)
Conditions Precedent to Closing. The Closing following shall be conditions precedent to the closing of the Loan and the initial disbursement advance of the Loans shall be subject to the following conditions precedentLoan proceeds:
(a) The This Agreement, the Note, the Deed of Trust and the other Loan Documents shall have been appropriately completed, duly properly executed by the parties thereto, recorded where necessary and delivered to the Administrative AgentLender, the Deed of Trust shall be acknowledged and recorded in the appropriate public office or delivered to a representative of the title company for recording and payment shall have been made for all conveyancing and recording in connection with the settlement of the Loan, and for any transfer or documentary stamp taxes due under any federal, state or municipal law.
(b) No Default or Event of Default The Lender shall have occurred received a paid policy of title insurance on the current ALTA Form or a valid and enforceable commitment to issue the same, from a company satisfactory to the Lender in the amount of the Loan and which may be continuingendorsed or assigned to the successors and assigns of the Lender without additional cost, insuring the lien of the Deed of Trust to be a valid first lien on the Property, free and clear of all defects, exceptions and encumbrances except such as the Lender and its counsel shall have approved and containing affirmative insurance against mechanics liens and such other and further endorsements or coverages as Lender may reasonable require (the “Title Policy”).
(c) All representations The Lender shall have received advice, in form and warranties contained herein substance and from a source satisfactory to the Lender, to the effect that a search of the applicable public records discloses no conditional sales contracts, chattel mortgages, leases of personalty, financing statements or title retention agreements filed or recorded against the Property except such as the Lender shall be true and correct in all material respects at the Closing Datehave approved.
(d) All legal matters incident The Lender shall have received all policies of insurance required by the terms hereof and by the other Loan Documents to the Loans shall be reasonably in effect from a company or companies and in form and amount satisfactory to the Administrative AgentLender, and including without limitation, flood insurance (in the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest amount of the Administrative AgentLoan or the maximum limit of coverage available on the Property, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed whichever is less or evidence that flood insurance is not available or otherwise required with respect to any other financing statements covering all or any portion of the CollateralProperty), except together with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006written evidence, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended that all fees and premiums due on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect theretoaccount thereof have been paid in full.
(he) The Administrative Agent Lender shall have received and approved an appraisal of the Property indicating that the ratio of the Loan amount to the “as-is” appraised value of the Property does not exceed 75%.
(f) The Lender shall have received and approved a field examination property condition report of the Collateral in form and substance acceptable to itProperty.
(ig) The Administrative Agent Lender shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against approved a copy of a current Survey of the Collateral other than those created or permitted by this Agreement or Land certified to the other Loan DocumentsLender and to the title insurance company and any recorded subdivision plat of the Land.
Appears in 3 contracts
Sources: Loan Agreement (Expensify, Inc.), Loan Agreement (Expensify, Inc.), Loan Agreement (Expensify, Inc.)
Conditions Precedent to Closing. The Closing and the initial disbursement of the Loans shall be subject to the following conditions precedent:
(a) The Loan Documents 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 been appropriately completedagreed upon the form of all customary documents, duly executed by including without limitation the parties theretoDefinitive Documents, recorded where necessary and delivered reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Administrative AgentProject Bonds.
(b) No Default The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or Event waiver of Default shall have occurred and be continuing.the following:
(ci) All representations No event of default beyond any applicable notice and warranties contained herein shall be true and correct in all material respects at cure periods on the Closing Date.
(d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements part of the Company for the period ended on December 31, 2006, has occurred and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists 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, nor would any Default and all other fees and expenses of the JDA as required by Section 3.6(c) hereof to be paid on or Event of Default occur after giving effect theretoprior to the Closing; and.
(hiii) The Administrative Agent Company and the Public Parties shall have received a field examination report agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted transactions contemplated by this Agreement, including the Rental Agreement or and all documents related to the other Loan DocumentsProject Bonds.
Appears in 3 contracts
Sources: Economic Development Agreement (Rivian Automotive, Inc. / DE), Economic Development Agreement, Economic Development Agreement
Conditions Precedent to Closing. The Closing and the initial disbursement of the Loans shall be subject to the following conditions precedent:
(a) The Loan Documents obligations of DIGITAL and Sellers under this agreement shall have been appropriately completedbe and are subject to fulfillment, duly executed by prior to or at the parties theretoClosing, recorded where necessary and delivered to of each of the Administrative Agent.following conditions:
(bi) No Default or Event of Default shall have occurred and be continuing.
(c) All That AVE's 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;
(ii) That AVE in all material respects shall have performed or complied with all agreements, terms and conditions required by this Agreement to be performed or complied with by it prior to or at the time of the Closing;
(iii) 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 matters described in Section 7(b)(i) herein; and
(iv) That AVE's common stock will be listed on the National Quotation Bureau, Inc.'s Bulletin Board.
(b) The obligations of AVE under this Agreement shall be and are subject to fulfillment, prior to or at the Closing Date.of each of the following conditions:
(di) All legal matters incident That AVE's Shareholders and Board of Directors, by proper and sufficient vote, shall have approved this Agreement and the 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 the Loans ___ 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 reasonably satisfactory to true and correct at the Administrative Agent, time of Closing as if such representations and the Borrowers agree to execute warranties were made at such time and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent that there shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed no Material Adverse Effect with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, DIGITAL; and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent York shall have received a field examination report certificate of DIGITAL and Sellers to such an effect signed by a duly authorized officer of DIGITAL and by each of the Collateral in form and substance acceptable to it.Sellers; and
(iiii) The Administrative Agent That DIGITAL and Sellers shall have performed or complied with all agreements, terms and 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 financing statement, judgment a Certificate of DIGITAL and tax lien searches reflecting that there are no Liens outstanding against Sellers to such effect signed by or duly authorized officer of DIGITAL and by each of the Collateral other than those created or permitted by this Agreement or Sellers;
(iv) That DIGITAL's officers will have signed non-compete clauses in the other Loan Documents.form 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. SECTION 7.1. Conditions to the Company's Obligations. The Closing and the initial disbursement obligations of the Loans 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 precedentconditions:
(a) The Loan Documents representations and warranties of such Purchaser contained in this Agreement shall have been appropriately completedtrue and correct when made and, duly executed by the parties theretoin addition, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties contained herein shall be repeated and true and correct in all material respects at on and as of the Closing 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, at or prior to the Closing, of the following conditions:
(a) The representations and warranties of the Company contained in this Agreement (i) shall 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 though made on and as of the Closing Date.
(b) The Company shall have performed in all material respects all of its obligations, agreements and covenants contained in this Agreement to be performed and complied with at or prior to the Closing Date.
(c) The Company shall have entered into the Registration Rights Agreement.
(d) All legal matters incident to The Company shall have filed the Loans shall be reasonably satisfactory to Certificate of Designation with the Administrative Agent, and Secretary of State of the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may requestState of Delaware.
(e) Financing statements in form and substance satisfactory to Any applicable waiting period under the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed HSR Act with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted purchase by this Agreement, and all taxes and fees with respect to such recording and filing Purchaser shall have expired or been paid by the Borrowersterminated.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days prior With respect to the Closing Dateof the purchase by Microsoft, from the appropriate state official earlier of any state in which (x) December 15, 1999, or (y) the Borrowers expiration or other termination of the Holding Company are incorporatedwaiting 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 (5) with respect to the Closing of the purchase by DB, the purchase by the HMTF Purchaser shall have occurred prior to or simultaneously with such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may requestClosing.
(g) The Administrative Agent Company shall have delivered to such Purchaser a certificate executed by it or on its behalf by a duly authorized representative, dated the Closing Date, to the effect that each of the conditions specified in paragraph (a) through (e) of this Section 7.2 has been satisfied.
(h) No provision of any Applicable Law, injunction, order or 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 (l) a Borrowing Base Certificatean opinion of counsel to the Company, (2) an Aging Reportdated the Closing Date, (3) a contract status and backlog report relating addressed to Eligible Receivables for the period ended on December 31, 2006such Purchaser, in form and substance satisfactory reasonably acceptable to the LenderPurchaser.
(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 HMTF Purchaser and the Olympus Funds only, the Company shall have delivered to the HMTF Purchaser and the Olympus Funds a Management Rights Agreement executed by the Company and addressed to the HMTF Funds and the Olympus Growth Fund III, L.P., respectively.
(4l) 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 adverse effect (x) on the business, assets, financial statements condition, prospects, or results of operations of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement Subsidiaries taken as a whole or (y) on the ability of the Loans, Company and certifying that no Default or Event of Default exists as of the Closing Date, nor would Subsidiaries to perform on a timely basis any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by material obligation under this Agreement or to consummate the other Loan DocumentsIssuance contemplated hereby; or (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 Company's ability to obtain financing on reasonable terms.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Teligent Inc), Stock Purchase Agreement (Hicks Thomas O)
Conditions Precedent to Closing. The Closing and the initial disbursement of the Loans (A) It shall be subject a condition precedent to Purchaser's obligations to consummate the following conditions precedent:
transactions contemplated by this Agreement that (a) The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All all representations and warranties contained made herein shall be by Seller are true and correct in all material respects at the as of each Closing Date.
(d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and all covenants made by Seller herein are fully complied with in all material respects, other than obligations required to be performed by Seller at Closing, which obligations must be fully complied with in all respects at each Closing, (b) as of each Closing Date, there shall exist no pending or threatened actions, suits, arbitrations, claims, attachments, proceedings, assignments for the Borrowers agree to execute and deliver to benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings that could adversely affect the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest operation or value of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect Property or Seller's ability to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by perform its obligations under this Agreement, and all taxes and fees with respect to such recording and filing (c) as of each Closing Date, there shall have been paid no material adverse change in the performance of any of the self storage facilities comprising the Property to be acquired at such Closing, or in any of the items reviewed by Purchaser during the BorrowersApproval Period, including without limitation the Due Diligence Items, failing which, Purchaser, at its option, and in addition to any other remedy available, shall be entitled to terminate this Agreement and receive a return of the ▇▇▇▇▇▇▇ Money.
(fB) The Borrowers It shall have delivered be a condition precedent to Seller’s obligations to consummate the Administrative Agent transactions contemplated by this Agreement that (1a) certified copies all representations and warranties made herein by Purchaser are true and correct in all material respects as of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days prior to the each Closing Date, from the appropriate state official of any state and all covenants made by Purchaser herein are fully complied with in all material respects, other than obligations required to be performed by Purchaser at Closing, which the Borrowers or the Holding Company are incorporatedobligations must be fully complied with in all respects at each Closing,, and (5b) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the each Closing Date, nor would any Default there shall exist no pending or Event threatened actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of Default occur after giving effect theretocreditors, insolvency, bankruptcy, reorganization or other proceedings that could adversely affect Purchaser’s ability to perform its obligations under this Agreement, failing which, Seller shall be entitled to pursue its remedies under this Agreement.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
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. 5.2.1 Conditions in favor of V-Sciences The Closing and the initial disbursement of the Loans shall be subject to the prior fulfillment of each of the following conditions precedentprecedent in favor of V-Sciences unless otherwise waived:
(a) The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties of the Company contained herein in Section 7.1 shall be true and correct in all material respects at as of the Closing Date(except that representations and warranties qualified by materiality or a Material Adverse Effect shall be true and correct in all respects).
(b) The Company shall have performed and complied with all covenants, agreements, obligations and 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 Shares pursuant to this Subscription Agreement shall be obtained and effective as of such Closing.
d) All legal matters incident The Company, V-Sciences, any other investor participating in the Series E Round and the other shareholders of the Company representing 85% of all outstanding Shares prior to the Loans Closing of the Series E Financing Round shall have executed and delivered the Shareholders’ Agreement (or a joinder agreement thereto), in substantially the form of Annex 0 hereto.
e) The Company, V-Sciences, any other Investor requesting so and the other shareholders of the Company named as parties thereto shall have executed and delivered the Registration Rights Agreement (or a joinder agreement thereto), in substantially the form of Annex 5.2.1(e) hereto.
f) V-Sciences and any other Investor requesting so shall have received from ▇▇▇▇▇▇▇ ▇▇, counsel for the 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 under such Agreement, and (ii) resolutions of the 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 incident thereto shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers V-Sciences and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent Investors shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status all such counterpart original and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements certified or other copies of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists such documents as reasonably requested. Subscription Agreement regarding AC Immune SA as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.16 October 2015 10
Appears in 2 contracts
Sources: Subscription Agreement, Subscription Agreement (AC Immune SA)
Conditions Precedent to Closing. 7.1 The Closing and obligations of Seller to consummate the initial disbursement transactions contemplated by this Agreement are subject to each of the Loans shall be subject to the following conditions precedentconditions:
(a) a. The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties contained herein made by Buyer in this Agreement shall be true and correct in all material respects when made and on and as of the Closing as 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 Datea satisfactory certificate to such effect, signed by an authorized officer of Buyer.
(d) All legal matters incident c. Buyer shall have executed and delivered to Seller at the Loans shall be reasonably satisfactory to Closing each of the Administrative Agent, Buyer Documents and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating as may be reasonably requested by Seller or the Title Company in order to consummate the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted 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 all taxes and fees other inspections performed in connection with respect the transactions contemplated pursuant to such recording and filing this Agreement.
e. The SPA shall have not been paid by terminated and LGWS is not in default under the Borrowersterms of the SPA.
(f) 7.2 The Borrowers shall have delivered obligations of Buyer to consummate the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken transactions contemplated by the Borrowers and the Holding Company this Agreement are subject to authorize the execution and delivery each of the Loan Documents, (2) certified copies 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 articles or certificate date of incorporation, bylaws, articles or certificate Closing as though such representations and warranties were made on and as of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent Closing. Buyer shall have received (l) from Seller at Closing a Borrowing Base Certificate, (2) satisfactory certificate to such effect signed by an Aging Report, (3) 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 contract status satisfactory certificate to such effect signed by an authorized officer of Seller.
c. Seller shall have executed and backlog report relating delivered to Eligible Receivables for Buyer at the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements Closing each of the Seller Documents and such additional documents as may be reasonably requested by Buyer or the Title Company for in order to consummate the period ended on December 31, 2006, transactions contemplated by this Agreement.
d. The SPA shall have not been terminated and (5) a pro forma Covenant Compliance Certificate, giving effect to Shareholders are not in default under the Transaction and the initial disbursement terms of the Loans, SPA.
7.3 The obligations of each of Seller and certifying that no Default or Event Buyer to consummate the transactions contemplated by this Agreement are subject to each of Default exists the following condition: as of the Closing Date, nor would there shall not be any Default claim or Event judgment of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report any nature or type threatened, pending or made by or before any governmental authority that questions or challenges the lawfulness of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted transactions contemplated by this Agreement under any law or the other Loan Documentsregulation or seeks to delay, restrain or prevent such transactions.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Lehigh Gas Partners LP), Purchase and Sale Agreement
Conditions Precedent to Closing. The Closing and the initial disbursement All obligations of the Loans shall be Purchaser under this Agreement are subject to the fulfillment, on or prior to the closing date, of each of the following conditions precedentconditions:
(a) The Loan Documents shall have been appropriately completed, duly executed by 9.1. That the parties thereto, recorded where necessary representations of the Acquired Company and delivered to of the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties contained herein Purchaser shall be true at and correct in all material respects as of the closing date as 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.
(d) All legal matters incident closing date, of counsel representing the Acquired Company, to the Loans shall be reasonably satisfactory to effect that the Administrative Agent, Acquired Company has been duly incorporated and is in good standing under the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest laws of the Administrative AgentState 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 and 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, for investigation, or governmental proceeding pending or threatened against the ratable benefit Acquired Company which might result in any material adverse change in the business, properties, or financial condition of the Lenders, Acquired Company or in any liability on the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion part of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, Acquired Company; and all taxes and fees with respect to such recording and filing shall have been paid by that the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution assignment and delivery of the Loan Documents, (2) certified copies Shares of the articles or certificate Acquired Company pursuant to this Agreement will vest in Purchaser all right, title and interest in and to such Shares, free and clear of incorporationall liens, bylaws, articles or certificate of organization encumbrances and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may requestequities.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent 9.3. That Purchaser shall have received a field examination report certificate dated on the closing date and signed by the President of the Collateral Acquired Company, that since the date of this Agreement the Acquired Company has not done or permitted to be done any of the acts or things prohibited by this Agreement;
9.4. That the auditors and accountants appointed by the Purchaser to examine the books and records of the Acquired Company shall not as of the closing date have rendered a report to Purchaser stating that the financial condition of Acquired Company is not substantially as represented herein or that in form their opinion the Acquired Company has contingent liabilities material in amount beyond that described in the Balance Sheet annexed hereto or as disclosed herein;
9.5. That no claim or liability not fully covered by insurance shall have been asserted against the Acquired Company nor has it suffered any loss on account of fire, flood, accident or other calamity of such a character as to materially adversely affect their financial condition, regardless of whether or not such loss shall have been insured, and substance acceptable to it.
(i) The Administrative Agent that Purchaser shall have received financing statement, judgment on the closing date a certificate signed by the President of the Acquired Company so stating;
9.6. That all covenants and tax lien searches reflecting that there indemnifications made herein by the Acquired Company which are no Liens outstanding against the Collateral other than those created to be performed at or permitted by this Agreement or the other Loan Documents.prior to closing shall have 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. The Closing and the initial disbursement of the Loans (A) It shall be subject a condition precedent to Purchaser’s obligations to consummate the following conditions precedent:
transactions contemplated by this Agreement that (a) The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All all representations and warranties contained made herein shall be by Seller are true and correct in all material respects at the as of each Closing Date.
(d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and all covenants made by Seller herein are fully complied with in all material respects, other than obligations required to be performed by Seller at Closing, which obligations must be fully complied with in all respects at each Closing, (b) as of each Closing Date, there shall exist no pending or threatened actions, suits, arbitrations, claims, attachments, proceedings, assignments for the Borrowers agree to execute and deliver to benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings that could adversely affect the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest operation or value of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect Property or Seller’s ability to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by perform its obligations under this Agreement, and all taxes and fees with respect to such recording and filing (c) as of each Closing Date, there shall have been paid no material adverse change in the performance of any of the self storage facilities comprising the Property to be acquired at such Closing, or in any of the items reviewed by Purchaser during the BorrowersApproval Period, including without limitation the Due Diligence Items, failing which, Purchaser, at its option, and in addition to any other remedy available, shall be entitled to terminate this Agreement and receive a return of the ▇▇▇▇▇▇▇ Money.
(fB) The Borrowers It shall have delivered be a condition precedent to Seller’s obligations to consummate the Administrative Agent transactions contemplated by this Agreement that (1a) certified copies all representations and warranties made herein by Purchaser are true and correct in all material respects as of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days prior to the each Closing Date, from the appropriate state official of any state and all covenants made by Purchaser herein are fully complied with in all material respects, other than obligations required to be performed by Purchaser at Closing, which the Borrowers or the Holding Company are incorporatedobligations must be fully complied with in all respects at each Closing,, and (5b) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the each Closing Date, nor would any Default there shall exist no pending or Event threatened actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of Default occur after giving effect theretocreditors, insolvency, bankruptcy, reorganization or other proceedings that could adversely affect Purchaser’s ability to perform its obligations under this Agreement, failing which, Seller shall be entitled to pursue its remedies under this Agreement.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
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. The Closing and the initial disbursement effectiveness of the Loans shall be 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 Loan Documents Broadridge shall have been appropriately completedreceived each of the following:
(i) this Agreement, duly authorized, executed by the parties thereto, recorded where necessary and delivered by PWI, PFSC and PFSI;
(ii) written confirmation from ▇▇▇▇▇▇, in a form reasonably acceptable to Broadridge, that the Acquisition Transaction has closed;
(iii) written confirmation from ▇▇▇▇▇▇, in a form reasonably acceptable to Broadridge, that ▇▇▇▇▇▇ consents to Broadridge’s entry into the New Services Agreement with Ridge concerning the Transferred Accounts;
(iv) written confirmation from ▇▇▇▇▇▇ that Newco has received all expected equity contributions from Apex Clearing Solutions LLC (or an affiliate thereof);
(v) the New Services Agreement, fully executed, authorized and delivered by Ridge; and
(vi) such other agreements, documents, instruments and certificates as Broadridge may reasonably request related to the Administrative Agenttransactions contemplated by this Agreement and the Acquisition Transaction.
(b) No Default ▇▇▇▇▇▇ shall have received each of the following or Event of Default the following shall have occurred and be continuing.
(c) All representations and warranties contained herein shall be true and correct in all material respects at the Closing Date.
(d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.applicable):
(i) The Administrative Agent shall have received financing statementthis Agreement, judgment duly authorized, executed and tax lien searches reflecting delivered by Broadridge;
(ii) written confirmation from Broadridge that there are no Liens outstanding against it consents to the Collateral other than those created or permitted by this Agreement or Acquisition Transaction; and
(iii) the other Loan DocumentsAcquisition 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. Conditions to the Obligations of Each of the Parties. The Closing obligation of each of the parties hereto to consummate the transactions provided for herein is subject to the fulfillment on or prior to the Effective Time of each of the following conditions:
1. The shareholders of Franklin shall have duly approved the Merger and the initial disbursement plan of merger contained within this Agreement in accordance with and as required by law and in accordance with Franklin's Charter and Bylaws.
2. All necessary governmental and regulatory orders, consents, clearances and approvals and requirements shall have been secured and satisfied for the consummation of such transactions, including without limitation, those of the Loans 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 following conditions precedent:final requisite approval by any applicable Regulatory Agency of the transaction contemplated herein shall have expired.
(a) 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, and with all applicable state securities authorities. The Loan Documents registration statement with respect thereto shall have been appropriately completed, duly executed declared effective by the parties thereto, recorded where necessary SEC and delivered to the Administrative Agent.
(b) No Default or Event of Default all applicable state securities authorities and no stop order shall have occurred been issued and be continuing. The shares of Fifth Third Common Stock to be issued to the Franklin shareholders hereunder shall have been authorized for trading on the Nasdaq National Market upon official notice of issuance.
(c) All B. Additional Conditions to the Obligations of Fifth Third and Fifth Third Financial. The obligation of Fifth Third and Fifth Third Financial to consummate the transactions provided for herein is subject to the fulfillment at or prior to the Effective Time of each of the following additional conditions unless waived by Fifth Third in a writing delivered to Franklin which specifically refers to the condition or conditions being waived:
1. The representations and warranties of Franklin contained herein shall be true and correct in all material respects at both as of the date of this Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date.
(d) All legal matters incident to 2. Franklin shall have performed all of the Loans shall be reasonably satisfactory to obligations required of it under the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may requestterms of this Agreement in all material respects.
(e) Financing statements 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 in form Section VI.B.1. and substance satisfactory to the Administrative Agent VI.B.2. have been satisfied.
4. No investigation or action by any state or federal agency shall have been properly filed threatened in each office where necessary writing or instituted seeking to perfect enjoin or prohibit or unwind the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements transactions contemplated hereby and no governmental action or proceeding shall have been filed with respect threatened or instituted before any court or governmental body or authority, seeking to any enjoin or prohibit or unwind, the transactions contemplated hereby or seeking to impose material sanctions or penalties as a result thereof (other financing statements covering all or any portion of the Collateralthan investigations, except with respect to financing statements perfecting Liens permitted by this Agreement, actions and all taxes and fees with respect to such recording and filing shall proceedings which have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days withdrawn prior to the Closing Datewithout a Material Adverse Effect on Fifth Third or Franklin, from and other than regularly scheduled regulatory examinations).
5. At or prior to the appropriate state official Effective Time, Fifth Third shall have entered into written employment, severance and/or non-competition agreements with each of any state in which the Borrowers or the Holding Company are incorporated(a) ▇▇▇▇▇▇ ▇▇▇▇▇, (b) ▇▇▇▇▇ ▇▇▇▇▇, (c) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, (d) ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., and (5e) such additional supporting documents as ▇▇▇▇ ▇▇▇▇▇▇▇▇ on terms satisfactory to Fifth Third and each of the Administrative Agent or counsel for the Administrative Agent reasonably may requestforegoing individuals.
(ga) The Administrative Agent In consideration of the consummation of the 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 received (l) executed and delivered to Fifth Third an agreement by which the Directors shall agree for a Borrowing Base Certificateperiod of three years after the Effective Time to refrain from directly or indirectly, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables whether for his or her own account or for the period ended on December 31account of any other person, 2006firm, in form and substance satisfactory to the Lendercorporation, (4) the financial statements of the Company for the period ended on December 31or other business organization, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statementin the states of Kentucky or Tennessee, judgment and tax lien searches reflecting 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 there are no Liens outstanding against the Collateral 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 those created Fifth Third or permitted 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 Section 6, the 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 which was disclosed by the Director to Fifth Third, and may be waived by Fifth Third with respect to one or the other Loan Documentsmore 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. The Closing and 4.01 Operating Partnership's obligation under this Agreement to consummate the initial disbursement of the Loans shall be transaction contemplated herein is subject to the fulfillment of each of the following conditions precedent:conditions.
(a) The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties of Pilevsky contained herein shall be true true, accurate and correct in all material respects at as of the Closing Date, except to the extent they expressly relate only to an earlier date.
(db) All legal matters incident consents and approvals of governmental authorities and parties to agreements to which Pilevsky is a party or by which any of his assets is bound that are required with respect to the Loans consummation of the transactions contemplated by this Agreement shall be reasonably satisfactory have been obtained and copies thereof shall have been delivered to Operating Partnership at or prior to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may requestClosing.
(ec) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all On or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days prior to the Closing Date, from (i) Pilevsky shall not have applied for or consented to the appropriate state official appointment of a receiver, trustee or liquidator for himself or any state in which of his assets unless the Borrowers or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent same shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating been discharged prior to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default and no such receiver, liquidator or Event of Default occur after giving effect thereto.
(h) The Administrative Agent trustee shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent otherwise been appointed, unless same shall have received financing statementbeen discharged prior to the Closing Date, judgment and tax lien searches reflecting that there are no Liens outstanding (ii) Pilevsky shall not have admitted in writing an inability to pay his debts as they mature, (iii) Pilevsky shall not have made a general assignment for the 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 Collateral other than those created same shall have been dismissed, canceled or permitted by this Agreement or terminated prior to the other Loan DocumentsClosing Date.
Appears in 2 contracts
Sources: Redemption Agreement (Philips International Realty Corp), Redemption Agreement (Philips International Realty Corp)
Conditions Precedent to Closing. The Closing All obligations of Acquired Company and the initial disbursement of the Loans shall be Purchaser under this Agreement are subject to the fulfillment, on or prior to the closing date, of each of the following conditions precedentconditions:
(a) The Loan Documents shall have been appropriately completed, duly executed by 8.1. That the parties thereto, recorded where necessary representations of Purchaser and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties contained herein Acquired Company shall be true at and correct in all material respects as of the closing date as 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.
(d) All legal matters incident closing date, of counsel representing the Acquired Company, to the Loans shall be reasonably satisfactory to effect that the Administrative Agent, Acquired Company has been duly incorporated and is in good standing under the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest laws of the Administrative AgentState 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 and 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, for investigation, or governmental proceeding pending or threatened against the ratable benefit Acquired Company which might result in any material adverse change in the business, properties, or financial condition of the Lenders, Acquired Company or in any liability on the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion part of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, Acquired Company; and all taxes and fees with respect to such recording and filing shall have been paid by that the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution assignment and delivery of the Loan Documents, (2) certified copies Shares of the articles or certificate Acquired Company pursuant to this Agreement will vest in Purchaser all right, title and interest in and to such Shares, free and clear of incorporationall liens, bylaws, articles or certificate of organization encumbrances and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.equities;
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent 8.3. That Purchaser shall have received a field examination report certificate dated on the closing date and signed by the President of the Collateral in form and substance acceptable Acquired Company, that since the date of this Agreement the Acquired Company has not done or permitted to itbe done any of the acts or 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, flood, accident or other calamity of such a character as to materially adversely affect their financial condition, regardless of whether or not such loss shall have been insured.
(i) The Administrative Agent 8.5. That all covenants and indemnification's made herein by Purchaser and by the Acquired Company which are to be performed at or prior to closing shall have received financing statementbeen duly performed;
8.6. That at the time of closing the Common Stock of Purchaser shall not be the subject of any investigation or inquiry by the Securities and Exchange Commission, judgment the National Association of Securities Dealers, and tax lien searches reflecting that there are no Liens outstanding against the Collateral any other than those created State or permitted by this Agreement or the other Loan DocumentsFederal 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 Closing and the initial disbursement of the Loans shall be subject to the following conditions precedent:
(a) The Loan Documents Debentureholder will only be obliged to subscribe for Debentures if:
(i) the Debentureholder, in its sole discretion, acting reasonably and in good faith, shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered be satisfied with their due diligence review with respect to the Administrative Agent.business, assets, financial condition and affairs of the Issuer and the Group;
(bii) No Default or Event prior to the Closing, the Debentureholder has received all of Default shall have occurred the documents listed in Schedule 2 (Conditions Precedent) in form and be continuing.substance reasonably satisfactory to it (in its discretion), save for the documents listed in Clause 4.2(a)(ii) (Closing Procedure);
(ciii) All 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 contained herein shall be true of the Issuer in this Agreement are true, accurate and correct in 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 (C) there has been no material respects breach of any of the obligations of the Issuer under this Agreement;
(v) on the Closing Date, no Default is continuing or would result from the issue of the Debentures;
(vi) there has been no Material Adverse Change;
(vii) the Debentureholder shall have received at the Closing Date.
(d) All Time favourable legal matters incident opinions addressed to the Loans shall be reasonably satisfactory to Debentureholder dated and delivered on the Administrative AgentClosing Date from the Issuer's legal counsel, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements from local counsel, in each case in form and substance satisfactory to the Administrative Agent shall have been properly filed Debentureholder (in each office where necessary its discretion), acting reasonably, with respect to perfect the security interest following matters:
(1) with respect to the Issuer (A) the enforceability of the Administrative Agent, for Debenture Documents; (B) the ratable benefit creation and valid issuance of the LendersDebentures; (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 Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion name of the CollateralIssuer; and (E) such matters that are customary in transactions similar to the offering of the Debentures, except with respect subject to financing statements perfecting Liens permitted 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 AgreementAgreement 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 purchase thereof by the Debentureholder;
(x) the Issuer having obtained all required regulatory (including Stock Exchange) and corporate approvals, and all taxes and fees with respect requisite third-party consents, to such recording and filing shall have been paid by permit the Borrowerscompletion of the transactions contemplated hereby; and
(xi) on or prior to the Closing, the Debentureholder has received the documents listed in Clause 4.2(a)(ii) (Closing Procedure) to be held in escrow pending Closing.
(fb) The Borrowers Debentureholder shall have delivered to notify the Administrative Agent (1) certified copies Issuer promptly upon receipt by or on behalf of evidence the Debentureholder of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, documents and other evidence listed in Schedule 2 (2Conditions Precedent) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to it.
(c) The Debentureholder may, in its absolute discretion and upon such terms as it thinks fit, waive compliance with the Lenderwhole or any part of this Clause 4.1 (Conditions Precedent to Closing).
(d) If, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, any of the conditions precedent provided in Clause 4.1(a) have not been satisfied, nor would waived as provided 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 Default other remedy the Debentureholder may have in connection with, and default or Event non-compliance of Default occur after giving effect theretothe Issuer’s obligations hereunder prior to such termination.
(he) The Administrative Agent An election by the Debentureholder under Clause 4.1(d) shall not operate as a waiver of any rights the Debentureholder may have received a field examination report by reason of the Collateral in form and substance acceptable such failure to itsatisfy or such non-fulfilment.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 2 contracts
Sources: Subscription Agreement (Lifezone Metals LTD), Subscription Agreement (Lifezone Metals LTD)
Conditions Precedent to Closing. (a) The Closing Company’s obligation to complete the purchase and the initial disbursement sale of the Loans Shares and deliver such stock certificate(s) to a Purchaser at the Closing shall be subject to the following conditions precedent:
conditions, any one or more of which may be waived in writing by the Company: (ai) The Loan Documents 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 made by such Purchaser herein are accurate as of the Closing Date; (iii) that such Purchaser has fulfilled undertakings and covenants set forth herein required to be fulfilled prior to the Closing; (iv) such Purchaser shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative AgentCompany the Questionnaire and the 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 been instituted or shall be pending before any court, arbitrator or governmental body, agency or official; (vi) the 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 of the transactions contemplated by the Acquisition Agreement shall have been consummated pursuant to the terms thereof.
(b) No Default or Event Each Purchaser’s obligation to accept delivery of Default such stock certificate(s) and to pay for the Shares evidenced thereby shall have occurred and be continuing.
subject to the conditions: (ci) All that the representations and warranties contained made by the Company herein shall be true and correct in all material respects at are accurate as of the Closing Date.
; (dii) All legal matters incident that the Company has fulfilled all undertakings and covenants set forth herein required to be fulfilled prior to the Loans shall be reasonably satisfactory to Closing; (iii) that the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent Acquisition shall have been properly filed in each office where necessary to perfect completed; (iv) that the security interest Common Stock shall be quoted by at least three market-makers on the OTC Bulletin Board within five (5) days of the Administrative AgentClosing Date; (v) the absence of any Material Adverse Change (as defined in Section 4.22) affecting the Company since December 31, for 2007; (vi) no proceeding challenging this Agreement or the ratable benefit of transactions contemplated hereby or thereby or seeking to prohibit, alter, prevent or materially delay the Lenders, in the Collateral, termination statements Closing shall have been filed with respect to instituted or shall be pending before any other financing statements covering all court, arbitrator or any portion governmental body, agency or official; (vii) the sale of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect Shares to such recording and filing Purchaser shall have been paid not be prohibited by any law or governmental order or regulation; (viii) that the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Placement Agent shall have received (l) a Borrowing Base Certificatethe opinion of Sonfield & Sonfield, (2) an Aging Reportthe Company’s outside counsel, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists dated as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
substantially covering the matters set forth in Exhibit 2 attached hereto; (hix) The Administrative Agent that the Company shall have received delivered to the Placement Agent a field examination report certificate evidencing the formation and good standing of the Collateral 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 and substance reasonably acceptable to itthe 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.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 2 contracts
Sources: Purchase Agreement (Deep Down, Inc.), Purchase Agreement (Deep Down, Inc.)
Conditions Precedent to Closing. The Closing and the initial disbursement obligation of the Loans shall be 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 precedent:are for the Investor’s sole benefit and may be waived by the Investor at any time in its sole discretion.
(a) The Loan Documents shall have been appropriately completed, duly executed by Representations and Warranties of the parties thereto, recorded where necessary Company are true and delivered to the Administrative Agentcorrect.
(b) No Default or Event of Default event shall have occurred and since the date of this Agreement that could result in, or reasonably be continuingexpected to result in a Material Adverse Effect, where “Material Adverse Effect” shall mean any condition, circumstance, or situation that may result in, or would reasonably be expected to result in (i) a material adverse effect on the 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) All representations and warranties contained herein The shares of the Company’s common stock (the “Common Stock”) shall be true authorized for quotation or trading on the OTC Markets OTCQB (the “Primary Market”) and correct trading in all material respects at the Closing Datecommon stock of the Company shall not have been suspended for any reason.
(d) All legal matters incident The Company is, and has been for a period of at least 90 days immediately prior to the Loans shall be reasonably satisfactory Closing, subject to the Administrative Agent, and reporting requirements of section 13 or 15(d) of the Borrowers agree to execute and deliver to Securities Exchange Act of 1934 (the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request“Exchange Act”).
(e) Financing statements The Standby Equity Distribution Agreement dated February 27, 2020 between the Company and the Investor (the “SEDA”) is in form full force and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowerseffect.
(f) The Borrowers shall have delivered to Company’s registration statement on Form S-3 (File No. 333-232614) under Section 5 of the Administrative Agent Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (1the “Securities Act”) certified copies of evidence of all corporate and company actions taken or another registration statement on a form promulgated by the Borrowers and SEC for which the Holding Company to authorize then qualifies for the execution and delivery registration of the Loan Documents, (2) certified copies offer and sale of securities to be offered and sold by the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) as the same may be amended and supplemented from time to time and including any information deemed to be a certificate of incumbency part thereof pursuant to Rule 430B under the Securities Act and 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 officers of registration securities to be offered and sold by the Borrowers and Company, shall be effective (collectively the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request“Registration Statement”).
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 2 contracts
Sources: Note Purchase Agreement (KULR Technology Group, Inc.), Note Purchase Agreement (KULR Technology Group, Inc.)
Conditions Precedent to Closing. The Closing and obligations of Buyer pursuant to this Agreement shall, at the initial disbursement option of the Loans shall Buyer, be subject to the following conditions precedent:
(a) The Loan Documents shall have been appropriately completed9.1. All of the representations, duly executed by the parties thereto, recorded where necessary warranties and delivered to the Administrative Agent.
(b) No Default or Event agreements of Default shall have occurred and be continuing.
(c) All representations and warranties contained herein Seller set forth in this Agreement shall be true and correct in all material respects at the Closing Date.
(d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, date hereof and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would and Seller shall not have on or prior to closing, failed to meet, comply with or perform in any Default material respect any conditions or Event agreements on Seller's part as required by the terms of Default occur after giving effect theretothis Agreement. If, due to a circumstance beyond the Seller's reasonable control, this condition cannot be met by the Seller, this Agreement and the Escrow shall thereupon be terminated, Buyer shall not be entitled to purchase the Property, Seller shall not be obligated to sell the Property to Buyer and the parties shall be relieved of any further obligation to each other with respect to the Property, except as provided in Paragraph 5.
(h) The Administrative Agent 9.2. There shall be no change in the matters reflected in the Title Report, and there shall not exist any encumbrance or title defect affecting the Property not described in the Title Report except for the Permitted Exceptions or matters to be satisfied at closing.
9.3. Effective as of closing, the management agreement affecting the Property shall be terminated by Seller and any and all termination fees incurred as a result thereof shall be the sole obligation of Seller.
9.4. Seller shall have received a field examination report completed the construction of the Collateral Parking Garage, in form accordance with the plans and substance acceptable specifications previously delivered to itBuyer and in compliance with all applicable building permits, legal requirements, and requirements of the Lease. Seller shall have paid all of the costs of the construction of the Parking Garage and shall have provided Buyer and the Title Company with such lien waivers and other evidence of the payment as they may reasonably require.
(i) The Administrative Agent 9.5. If any such condition is not fully satisfied by closing, Buyer shall so notify Seller and may terminate this Agreement by written notice to Seller whereupon this Agreement may be canceled, upon return of the Due Diligence Items the Deposit shall be paid to Buyer and, thereafter, neither Seller nor Buyer shall have received financing statementany continuing obligations hereunder.
9.6. If Buyer notifies Seller of a failure to satisfy the conditions precedent set forth in this paragraph, judgment Seller may, within five (5) days of receipt of Buyer's Notices agree to satisfy the condition by written notice to Buyer, and tax lien searches reflecting that there are no Liens outstanding against Buyer shall thereupon be obligated to close the Collateral other than those created transaction provided Seller so satisfies such condition. If Seller fails to agree to cure or permitted fails to cure such condition by the Closing Date, this Agreement or shall be canceled and the other Loan DocumentsDeposit shall be returned to Buyer and neither party shall have any further liability hereunder.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (T Reit Inc), Purchase and Sale Agreement (NNN 2003 Value Fund LLC)
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 and the initial disbursement of the Loans Date shall be subject to the following conditions precedent:(all or any of which may be waived, in whole or in part, by RM Eastview):
(a) The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties contained made by ▇▇▇▇-▇▇▇▇ herein shall be true and correct in all material respects at with the same force and effect as though such representations and warranties had been made on and as of the Closing Date;
(b) 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; and
(c) ▇▇▇▇-▇▇▇▇ 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 County shall have duly executed, acknowledged and delivered to ▇▇▇▇-▇▇▇▇ a landlord estoppel certificate as provided for in Section 22.1 of the Ground Lease;
(c) The survey of the Property shall include a certification to ▇▇▇▇-▇▇▇▇ and its successors and assigns;
(d) All legal matters incident to the Loans The representations and warranties made by RM Eastview herein shall be reasonably satisfactory to true and correct in all material respects with the Administrative Agent, same force and effect as though such representations and warranties had been made on and as of the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.Closing Date;
(e) Financing statements in form and substance satisfactory to the Administrative Agent RM Eastview shall have been properly filed performed all covenants and obligations undertaken by RM Eastview herein in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed all respects and complied with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted conditions required by this Agreement, and all taxes and fees Agreement to be performed or complied with respect to such recording and filing shall have been paid by it on or before the Borrowers.Closing Date;
(f) The Borrowers shall have delivered Title Company is unconditionally prepared to issue a Title Policy meeting the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency requirements for the officers of the Borrowers and the Holding Company 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 an "insurable title" as set forth in which the Borrowers or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.Section 3.3 hereof;
(g) The Administrative Agent Property shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, be in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.compliance with all Environmental Laws;
(h) The Administrative Agent There shall have received a field examination report of not be any sewer moratorium affecting the Collateral in form and substance acceptable to it.Property; and
(i) The Administrative Agent RM Eastview shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against delivered to ▇▇▇▇-▇▇▇▇ all of the Collateral other than those created or permitted by this Agreement or the other Loan Documentsdocuments provided herein for said delivery.
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. a) The Closing and obligations of Purchaser to effect the initial disbursement of the Loans transactions contemplated by this Agreement shall be subject to the satisfaction, at or prior to the Closing Date, and the continued satisfaction or validity of such conditions on the Closing Date, of all of the following conditions precedentconditions, any one or more of which may be waived by Purchaser:
(ai) The Loan Documents shall have been appropriately completed, duly executed by Each of the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties of Seller 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) Seller shall have performed and complied in all material respects at 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
iii) On the Closing Date, there shall exist no injunction or other order issued by any Governmental Authority or court of competent jurisdiction which prohibits the consummation of the transactions contemplated under this Agreement.
(db) All legal matters incident The obligations of Seller to effect the transactions contemplated by this Agreement shall be subject to the Loans shall be reasonably satisfactory to the Administrative Agentsatisfaction, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all at or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days prior to the Closing Date, from and the appropriate state official continued satisfaction or validity of any state in which such conditions on the Borrowers or the Holding Company are incorporatedClosing Date, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of all of the Company for the period ended on December 31following conditions, 2006, and (5any one or more of which may be waived by Seller:
i) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement Each of the Loans, representations and certifying that no Default or Event warranties of Default exists Purchase contained herein shall be true and correct on and as of the Closing Date, nor would any Default or Event Date with the same effect as though the same had been made on and as of Default occur after giving effect thereto.such date;
(hii) The Administrative Agent Purchaser shall have received a field examination report of the Collateral performed and complied in form all material respects with all agreements and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted covenants required by this Agreement to be performed and complied with by Purchaser prior to or on the Closing Date; and
iii) On the Closing Date, there shall exist no injunction or other Loan Documentsorder issued by any Governmental Authority or court of competent jurisdiction which prohibits the consummation of the transactions contemplated under this Agreement.
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 Closing and the initial disbursement obligations of the Loans Company hereunder required to be performed on the Closing Date shall be subject subject, at the election of the Company, to the satisfaction or waiver, at or prior to the Closing, of the following conditions precedentconditions:
(a) The Loan Documents representations and warranties of each Holder contained in this Agreement shall have been appropriately completedtrue and correct when made and, duly executed by the parties theretoin addition, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties contained herein shall be repeated and true and correct in all material respects at on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date.
(b) 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 be performed and complied with by such Holder at or prior to the Closing Date.
(c) Any applicable waiting period under the HSR Act shall have expired or been terminated.
(d) All legal matters incident to the Loans The Company shall be have received, on terms reasonably satisfactory to the Administrative AgentCompany, Apollo Management and Blackstone, any consent or waiver necessary under the Borrowers agree Credit Agreement to execute permit the performance of this Agreement and deliver to consummation of the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may requestTransactions.
(e) Financing statements in form and substance satisfactory to The stockholders of the Administrative Agent Company shall have been properly filed in each office where necessary to perfect approved the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted Issuance as required by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the BorrowersApplicable Law.
(f) The Borrowers Holders shall have delivered to entered into each of the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers Supplementary Registration Rights Agreement and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may requestSupplementary Shareholders Agreement.
(g) The Administrative Agent Holders shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory delivered certificates representing their Shares to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect theretoCompany.
(h) The Administrative Agent No provision of any Applicable Law, injunction, order or decree of any Governmental Entity shall have received a field examination report be in effect which has the effect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the Collateral in form and substance acceptable to itTransactions.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against concurrent consummation of the Collateral other than those created or permitted Exchange by this Agreement or the other Loan DocumentsApollo/Blackstone Shareholders (as defined in the Shareholders Agreement).
Appears in 2 contracts
Sources: Exchange Agreement (Allied Waste Industries Inc), Exchange Agreement (Allied Waste Industries Inc)
Conditions Precedent to Closing. The Closing and Neither Agent nor any Lender shall be obligated to make the initial disbursement of the Loans shall be subject Loans, or to take, fulfill, or perform any other action under this Agreement, until the following conditions precedenthave been satisfied to Agent’s complete satisfaction or waived in writing by Agent and the Lenders:
(a) The Loan Documents Agent shall have been appropriately completedreceived each of the documents, agreements, instruments, reports, certificates and statements set forth on the Schedule of Documents, each duly executed by the appropriate parties thereto, recorded where necessary and delivered in form and substance satisfactory to the Administrative Agent.;
(b) No Default or Event payment by Borrower of Default shall have occurred Agent’s Fees and be continuing.all other fees, costs, and expenses of closing (including reasonable fees of counsel to Agent invoiced as of the Closing Date);
(c) All 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 transactions contemplated by this Agreement or 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 representations and warranties contained herein of Borrower under this Agreement and the 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., to that effect signed by an Authorized Signatory;
(df) All legal matters incident Agent shall determine that no Material Adverse Effect shall have occurred since the most recent audited Financial Statements delivered to Agent prior to the Loans Closing Date;
(g) Agent shall be reasonably satisfactory have received opinions of counsel addressed to the Administrative Agent, Agent and the Borrowers agree Lenders of (i) Winston & ▇▇▇▇▇▇ LLP, special counsel to execute Borrower and deliver (ii) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special Maryland counsel to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements Borrower, each in form and substance satisfactory to Agent;
(h) Agent and the Administrative Agent Requisite Lenders shall have been properly filed in each office where necessary received and approved Borrower’s Credit Policy, which shall be consistent with those previously represented to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.;
(fi) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received evidence satisfactory to Agent either that any Person having a Lien (lexcept for Permitted Liens) a Borrowing Base Certificatewith respect to the assets of Borrower shall have released such Lien or that such Lien shall be automatically terminated upon the funding of the Loans to be made on the Closing Date; and
(j) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, (2) an Aging Reportexecuted, (3) a contract status or recorded and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, 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 Lender, (4) the financial statements terms of the Company for the period ended on December 31, 2006this Section 2.1 shall control, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would Borrower shall not have any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by rights under this Agreement or the any other Loan DocumentsDocument until each of the conditions of this Section 2.1 has been complied with to Agent’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. The This Agreement shall become effective on the date (“Closing and the initial disbursement Date”) that each of the Loans shall be subject to the following conditions precedent:has been satisfied (or waived in accordance with this Agreement):
(a) The Each Loan Documents Document shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to Administrative Agent by each of the 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) 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 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 such fees and taxes shall have been made), and (ii) 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 Business); provided that no such Lien Waiver is required so long as a Rent and 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 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.
(be) Administrative Agent shall have received certificates, in form and substance reasonably satisfactory to it, from a knowledgeable Senior Officer of the Company certifying that, as of the Closing Date, after giving effect to the Transactions (including, without limitation, any 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 a 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; (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 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, 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 Default or Event of Default event shall have occurred and or circumstance exist since December 31, 2017 that has or would reasonably be continuingexpected, either individually or in the aggregate, to have a Material Adverse Effect.
(ck) All representations Borrowers shall have paid all reasonable and warranties contained herein shall be true documented costs and correct expenses of the Lead Left Arranger, Administrative Agent and Lenders (including, without limitation, reasonable and documented fees (including such fees agreed upon in all material respects 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.
(dl) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements 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 been properly filed 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 office where necessary case, giving effect to perfect the security interest 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 AgentAgent 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 ratable benefit of the LendersFiscal Quarter ended March 31, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers2018.
(fo) The Borrowers Administrative Agent and Lenders shall be reasonably satisfied with the capital structure of the Company and its Subsidiaries.
(p) Each Lender shall have delivered to received internal credit approval for the extension of credit under this Agreement.
(q) (i) Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documentsshall have received, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days at least 3 Business Days prior to the Closing Date, from all documentation and other information required by Governmental Authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the appropriate state official of any state PATRIOT Act, that has been reasonably requested in which writing at least 5 Business Days prior to the Borrowers or the Holding Company are incorporated, and (5) such additional supporting documents as the Closing Date by Administrative Agent or counsel for 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 reasonably may request.
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 (giii) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended reasonably satisfactory background checks on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements key members of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement management of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect theretoeach Borrower.
(hr) The Administrative Agent shall have received a field examination report Borrowing Base Report dated as of the Collateral May 31, 2018 in form and substance acceptable reasonably satisfactory to it, including aging reports for the Eligible Accounts Receivable.
(is) The 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 financing statementa certificate, judgment in form and tax lien searches reflecting 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 there no such consents, licenses or approvals are so required and (ii) certifying no Liens outstanding against law or regulation is applicable that could restrain, prevent or impose any material adverse conditions on the Collateral Obligors.
(u) After giving effect to the Transactions, neither the Company nor its Subsidiaries shall have any Material Debt for borrowed money other than those created or permitted by (i) the Secured Notes, (ii) the Senior Notes and (iii) this Agreement.
(v) The Lenders shall have received the fees required to be paid under Section 3.2.4. Without limiting the generality of the 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 this Agreement shall be deemed to (i) have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender and Issuing Bank and (ii) have received internal credit approval for the other Loan Documentsextension of credit under this Agreement, in each case, unless Administrative Agent shall have received notice from such Lender or Issuing Bank prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Loan and Security Agreement (CSI Compressco LP), Loan and Security Agreement (CSI Compressco LP)
Conditions Precedent to Closing. SECTION 7.1. Conditions to the Company's Obligations. The Closing and the initial disbursement obligations of the Loans 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 precedentconditions:
(a) The Loan Documents representations and warranties of such Purchaser contained in this Agreement shall have been appropriately completedtrue and correct when made and, duly executed by the parties theretoin addition, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties contained herein shall be repeated and true and correct in all material respects at on and as of the Closing 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) All legal matters incident to 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 Loans shall be reasonably satisfactory to execution, delivery and performance of the Administrative Agent, and Equity Documents or the Borrowers agree to execute and deliver to consummation of the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may requestIssuance.
(e) Financing statements in form and substance satisfactory 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 Administrative Agent satisfaction or waiver, at or prior to the Closing, of the following conditions:
(a) The representations and warranties of the Company contained in this Agreement (i) shall have been properly filed true and correct when made and (ii) shall be (A) in each office where necessary the case of representations and warranties that are qualified as to perfect the security interest of the Administrative Agentmateriality or Material Adverse Effect, for the ratable benefit of the Lenderstrue and correct and (B) in all other cases, true and correct in all material respects, in the Collateralcase of clauses (A) and (B), termination statements as of the Closing Date with the same force and effect as though made on and as of the Closing Date.
(b) The Company shall have been performed in all material respects all of its obligations, agreements and covenants contained in this Agreement to be performed and complied with at or prior to the 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 any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted purchase by this Agreement, and all taxes and fees with respect to such recording and filing Purchaser shall have expired or been paid by the Borrowersterminated.
(f) The Borrowers Company shall have delivered to such Purchaser a certificate executed by it or on its behalf by a duly authorized representative, dated the Closing Date, to the effect that each of the conditions specified in paragraph (a) through (e) of this Section 7.2 has been satisfied.
(g) No provision of any Applicable Law, injunction, order or 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.
(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.
(i) 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 Administrative Agent (1) certified copies of evidence of all corporate and company actions taken HMTF Purchasers a Management Rights Agreement executed by the Borrowers Company and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days prior addressed to the Closing Date, from the appropriate state official of any state in which the Borrowers or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may requestHMTF Funds.
(g) The Administrative Agent shall have received (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 Borrowing Base Certificatematerial adverse effect (x) on the business, (2) an Aging Reportassets, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31financial condition, 2006prospects, in form and substance satisfactory to the Lender, (4) the financial statements or results of operations of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement Subsidiaries taken as a whole or (y) on the ability of the Loans, Company and certifying that no Default or Event of Default exists as of the Closing Date, nor would Subsidiaries to perform on a timely basis any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by material obligation under this Agreement or to consummate the other Loan DocumentsIssuance contemplated hereby; or (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 Company's ability to obtain financing on reasonable terms.
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. 5.1 Conditions to the Obligations of each Party The Closing and the initial disbursement respective obligations of the Loans Parties to effect the Closing as provided in Section 6 shall be subject to the satisfaction or waiver (where permissible) of all of the following conditions precedentClosing Conditions:
a) All governmental approvals (other than the approval as set forth in Section 7.1a)) shall have been obtained or, where relevant, any waiting period under the applicable merger control or foreign investment Laws shall have expired or been terminated by the competent authorities;
b) No action shall be pending and no order, injunction or decree of any competent court, administrative body or arbitration tribunal exists which seeks to enjoin, restrain, impede or levy a substantial difficulty on the consummation of the transactions contemplated hereunder;
c) Any stock option plans of any Group Company have been terminated; and
d) The employment agreements of the Key Employees shall have been amended and renewed according to the form of Annex 6.2e).
5.2 Conditions Precedent regarding the Obligations of the Buyer The obligations of the Buyer regarding the performance of the transactions contemplated under this Agreement shall be subject to the satisfaction or waiver by the Buyer (where permissible) of all of the following Closing Conditions:
a) The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties contained herein shall be of the Sellers made in this Agreement are in all respects true and correct on the date on which these representations and warranties of the Sellers have been made;
b) The Sellers shall have complied in all material respects at the Closing Date.with its obligations and covenants under this Agreement on or before Closing; and
(dc) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent No Material Adverse Effect shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowersoccurred.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 2 contracts
Sources: Share Purchase Agreement (Relief Therapeutics Holding SA), Share Purchase Agreement (Relief Therapeutics Holding SA)
Conditions Precedent to Closing. The Closing and 4.01 Operating Partnership's obligation under this Agreement to consummate the initial disbursement of the Loans shall be transactions contemplated herein is subject to the fulfillment of each of the following conditions precedent:conditions.
(a) The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties of Pilevsky contained herein shall be true true, accurate and correct in all material respects at as of the Closing Date, except to the extent they expressly relate only to an earlier date.
(db) All legal matters incident consents and approvals of governmental authorities and parties to agreements to which Pilevsky is a party or by which any asset owned by Pilevsky is bound that are required with respect to the Loans consummation of the transactions contemplated by this Agreement shall be reasonably satisfactory have been obtained and copies thereof shall have been delivered to Operating Partnership at or prior to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may requestClosing.
(ec) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all On or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days prior to the Closing Date, from (i) Pilevsky shall not have applied for or consented to the appropriate state official appointment of a receiver, trustee or liquidator for himself or any state in which of his assets unless the Borrowers or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent same shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating been discharged prior to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default and no such receiver, liquidator or Event of Default occur after giving effect thereto.
(h) The Administrative Agent trustee shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent otherwise been appointed, unless same shall have received financing statementbeen discharged prior to the Closing Date, judgment and tax lien searches reflecting that there are no Liens outstanding (ii) Pilevsky shall not have admitted in writing an inability to pay his debts as they mature, (iii) Pilevsky shall not have made a general assignment for the 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 Collateral other than those created same shall have been dismissed, canceled or permitted by this Agreement or terminated prior to the other Loan DocumentsClosing Date.
Appears in 2 contracts
Sources: Redemption Agreement (Philips International Realty Corp), Redemption Agreement (Philips International Realty Corp)
Conditions Precedent to Closing. (a) The Closing respective obligations of each of the Company and the initial disbursement of Purchasers to consummate the Loans Closing shall be subject to the satisfaction or waiver, if permissible under applicable law, on or prior to the Closing Date of the following conditions precedentconditions:
(ai) The Loan Documents no Governmental Entity shall have been appropriately completedenacted, duly executed by issued, promulgated, enforced or entered any judgment, order, law, rule or regulation which is then in effect and has the parties thereto, recorded where necessary and delivered to effect of making the Administrative Agentconsummation of the transactions contemplated hereby illegal or otherwise restraining or prohibiting consummation of the transactions contemplated hereby; and
(ii) the Transaction shall have closed.
(b) No Default The obligations of each Purchaser to consummate the Closing shall be subject to the satisfaction or Event waiver by such Purchaser, in its sole discretion and if permissible under applicable law, on or prior to the Closing Date of Default the following conditions:
(i) the Closing shall have occurred and be continuing.by the Outside Date;
(cii) All the representations and warranties of the Company contained herein in this Agreement shall be true and correct in all material respects at and as of the Closing Date.;
(diii) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent Company shall have been properly filed performed, satisfied and complied in each office where necessary to perfect the security interest of the Administrative Agentall material respects with all covenants, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted agreements and conditions required by this AgreementAgreement to be performed, and all taxes and fees satisfied or complied with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles it at or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days prior to the Closing Date; 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 the Company’s good standing in its jurisdiction of organization, from the appropriate state official of any state in which the Borrowers or the Holding Company are incorporatedits organizational documents, and (5) such additional supporting documents as its corporate authorization of the Administrative Agent or counsel for the Administrative Agent reasonably may requesttransactions contemplated hereby.
(gc) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements obligations of the Company for to consummate the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect Closing shall be subject to the Transaction satisfaction or waiver by the Company, in its sole discretion and if permissible under applicable law, on or prior to the initial disbursement Closing Date of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.following conditions:
(i) The Administrative Agent all representations and warranties of the Purchasers contained in this Agreement shall be true and correct as to each Purchaser, severally and not jointly, except as would not have a material adverse effect on such Purchaser’s ability to consummate the transactions contemplated hereby; and
(ii) each Purchaser shall have received financing statementperformed, judgment satisfied and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted 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 other Loan DocumentsClosing Date.
Appears in 2 contracts
Sources: Investment Agreement (Innventure, Inc.), Investment Agreement (Learn CW Investment Corp)
Conditions Precedent to Closing. The Closing Equity Conversion will be conditioned upon satisfaction of terms and conditions in the initial disbursement of the Loans shall be Conversion Agreement, as provided by, consistent with, and subject to the following conditions precedent:
(a) Restructuring Support Agreement, including, without limitation, the following: • The Loan Restructuring Support Agreement shall be in full force and effect as of the closing of the Equity Conversion and shall not have been amended or modified without the prior consent of the Required EFIH Unsecured Consenting Creditors in violation of the terms of the Restructuring Support Agreement; • The Bankruptcy Court shall have entered the Disclosure Statement Order, and such order shall be in full force and effect and not subject to a stay; • The Bankruptcy Court shall have entered the 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 appropriately completed, duly executed by the parties thereto, recorded where necessary obtained and delivered to the Administrative Agent.
(b) No Default or Event of Default shall remain in effect; • The Private Letter Ruling shall have occurred been obtained from the IRS; • The Plan shall have become, or simultaneously with the issuance of the New Reorganized EFH Stock will become, effective; • The covenants to be performed by EFH and be continuing.
(c) All representations EFIH in the Conversion Agreement shall have been performed and warranties contained herein shall be true and correct complied with in all material respects at on the Closing Date.
(d) All legal matters incident to closing date of the Loans Equity Conversion; and • There shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall not have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all a continuing default (or any portion event which with the giving of notice or lapse of time or both would be a default) under the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the BorrowersSecond Lien DIP Facility.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
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. 7.1 Conditions to the Company's Obligations. The Closing and the initial disbursement obligations of the Loans 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 precedentconditions:
(a) The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties of each Investor contained herein 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 at respects, in each case on and as of the date hereof and on and as of the Closing 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) All legal matters incident to The Company shall have received from each Investor certificates representing the Loans shall be reasonably satisfactory to the Administrative Agent, aggregate number of shares of Original Preferred Stock and the Borrowers agree to execute 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 deliver to the Administrative Agent pro rata portion of the Cash Proceeds set forth opposite such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may requestInvestor's name on Schedule A hereto.
(e) Financing statements in form Each Investor shall have executed and substance satisfactory 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 Administrative Agent satisfaction or waiver in writing, at or prior to the Closing, of the following conditions:
(a) The representations and warranties of the Company 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 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 Date, as if made on and as of the Closing Date.
(b) The Company shall have been properly filed performed in each office where necessary all material respects all of its obligations and agreements, and complied with covenants contained in this Agreement to perfect be performed and complied with at or prior to the security interest 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 Administrative AgentTransactions.
(d) The Company shall have delivered to such Investor a certificate executed by it or on its behalf by a duly authorized representative, for dated the ratable benefit Closing Date, to the effect that each of the Lenders, conditions specified in the Collateral, termination statements paragraph (a) through (c) and (l) of this Section 7.2 has been satisfied.
(e) The Company shall have been filed with respect delivered to any other financing statements covering all or any portion such Investor the certificate executed by the Secretary of the CollateralCompany, except with respect to financing statements perfecting Liens permitted dated the Closing Date, as contemplated by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the BorrowersSection 2.2(b)(vii).
(f) The Borrowers 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 Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by closing conditions under the Borrowers Term Loan Agreement have been satisfied and the Holding Company to authorize transactions contemplated thereby shall be consummated simultaneously with the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may requestExchange.
(g) The Administrative Agent 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 (l) a Borrowing Base Certificatethe Opinion, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists dated as of the Closing Date, nor would any Default or Event of Default occur after giving effect theretoand addressed to such Investor in form and substance reasonably acceptable to the MidOcean Investor and the Sandler Investors.
(hj) The Administrative Agent Such Investor shall have received a field examination report long-form good standing certificate of the Collateral in form Company and substance acceptable each Subsidiary, dated as of a date as close as practicable to itthe Closing Date, issued by the Secretary of State of the State of Delaware, as contemplated by Section 2.2(b)(viii).
(ik) The Administrative Agent Such Investor shall have received financing statementthe 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, judgment circumstance, condition, fact, effect or other matter which has had or would reasonably be expected to have a material adverse effect (x) on the condition (financial or otherwise), business, properties, assets, liabilities, operations or results of operations of the Company and tax lien searches reflecting that there are no Liens outstanding against the Collateral Subsidiaries, taken as a whole or (y) on the ability of the Company and the Subsidiaries to perform on a timely basis any material obligation under this Agreement or to consummate the Exchange contemplated hereby.
(m) The Private Placement shall have been successfully consummated by the Company on terms and conditions (including, without limitation, the issuance price of the Common Stock) satisfactory to the MidOcean Investor and the Sandler Investors.
(n) The Company shall have received the written opinion of Evercore Partners, Inc., as contemplated by Section 2.2(c).
(o) All other than those created or permitted Investors shall have elected to consummate simultaneously the transactions contemplated by this Agreement or and the other Loan Transaction Documents.
(p) The Company's outstanding Senior Subordinated Debentures due 2005 shall have been repaid in full, and satisfactory evidence thereof shall have been delivered to the Investors.
(q) The Company shall have delivered to such Investor evidence of the payment of all costs and expenses of such Investor required to be reimbursed by the Company pursuant to Section 8.10.
Appears in 2 contracts
Sources: Exchange Agreement (Infocrossing Inc), Exchange Agreement (Midocean Capital Partners Lp)
Conditions Precedent to Closing. 5.1 Conditions to the Company's Obligations. The Closing and the initial disbursement obligations of the Loans Company hereunder required to be performed on the Closing Date shall be subject subject, at its election, to the satisfaction or waiver, at or prior to the Closing, of the following conditions precedentconditions:
(a) The Loan Documents representations and warranties of the Purchaser contained in this Agreement shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary true and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred correct when made and be continuing.
(c) All representations and warranties contained herein shall be true and correct in all material respects at on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date.
(b) 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 the 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) All legal matters incident The Company shall have received payment of the Purchase Price as well as payment of all costs incurred by the Company in connection with the 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 Loans satisfaction or waiver, at or prior to the Closing, of the following conditions:
(a) The representations and warranties of the Company contained in this Agreement shall have been true and correct when made and shall be reasonably satisfactory true and correct in all material respects on and as of the 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 Administrative AgentClosing 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, and the Borrowers agree to execute and deliver Investor Loan Documents, the Subordinated Loan Documents or any documents executed by Purchaser.
(d) To the extent not already in the possession of the Purchaser or one of its Affiliates, the Company shall have delivered to the Administrative Agent such additional documents and certificates relating to Purchaser a copy of each AH Entity's Organizational Documents, as amended through the Loans as the Administrative Agent reasonably may requestClosing Date.
(e) Financing statements in form All governmental and substance satisfactory to regulatory approvals and clearances and all third-party Consents necessary for the Administrative Agent consummation of the transactions contemplated by the Transaction Documents shall have been properly filed obtained and shall be in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, full force and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowerseffect.
(f) The Borrowers Purchaser shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and received delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization Stock Certificate and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may requestan executed Stock Power.
(g) The Administrative Agent Purchaser shall have received (l) a Borrowing Base Certificatesuch other certificates, (2) an Aging Report, (3) a contract status instruments and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, documents in form and substance satisfactory to the Lender, (4) the financial statements furtherance of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists transactions contemplated by this Agreement as of the Closing Date, nor would any Default or Event of Default occur after giving effect theretoit may reasonably request.
(h) The Administrative Agent Each officer and director, if any, of each AH Entity shall have received a field examination report of the Collateral in form and substance acceptable to itresigned.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Brookdale Senior Living Inc.), Stock Purchase Agreement (Brookdale Senior Living Inc.)
Conditions Precedent to Closing. The Closing and Subject to Section 3.02, the initial disbursement obligation of the Loans Lenders hereunder shall be subject to the following conditions precedentprecedent 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 Loan each of the Facility Documents shall have been appropriately completed, duly executed and delivered by the parties thereto, recorded where necessary which shall each be in full force and delivered to the Administrative Agent.effect;
(b) No Default or Event true and complete copies of Default shall have occurred the Constituent Documents of the Borrower, the Parent and be continuing.the Portfolio Manager as in effect on the Closing Date;
(c) All true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (f) below), if any, required in connection with the transactions contemplated by this Agreement;
(d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of the 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 contained herein 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 at the Closing Date.
(d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent as of such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documentsearlier date), (2iv) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists 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 Portfolio Manager certifying (i) as to 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 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, 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) 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, nor would any Default or Event to the effect that, in the case of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report each item of Collateral pledged to the Collateral in form Agent, on the Closing Date and substance acceptable immediately prior to it.the delivery thereof on the Closing Date:
(i) The Administrative the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the 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 Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to Permitted Liens) perfected security interest in the Collateral;
(o) [reserved];
(p) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have received financing statementreasonably requested; and
(q) a certificate of a Responsible Officer of the Borrower, judgment and tax lien searches reflecting that there are no Liens outstanding against dated as of the Closing Date, to the effect that, in the case of the Collateral other than those created Obligations owned by the Borrower on the Closing Date:
(i) each of the Collateral Quality Tests and the Concentration Limitations is satisfied; and
(ii) with respect to any Collateral Obligation with a Credit Estimate, such Credit Estimate has been assigned by Moody’s, S&P or permitted DBRS within one year prior to the Closing Date or a request for an updated Credit Estimate has been submitted by this Agreement or on behalf of the other Loan DocumentsBorrower and is 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. The Closing A. In addition to any conditions provided in other provisions of this Agreement, Purchaser’s obligation to purchase the Project is and the initial disbursement of the Loans shall be subject to conditioned on the following conditions precedentfollowing:
(ai) The Loan Documents shall have been appropriately completeddue performance by Seller, duly executed in every material respect, of each and every covenant, undertaking and agreement to be performed by it hereunder and the parties theretotruth, recorded where necessary in every material respect, of each representation and delivered to warranty made in this Agreement by Seller at the Administrative Agenttime as of which the same is made and as of the Closing as if made on and as of the Closing.
(ii) That at no time prior to the Closing shall any of the following have been done by or against or with respect to Seller and/or Tenants: (a) the commencement of a case under Title 11 of the U.S. Code, as now constituted or hereafter amended, or under any other applicable federal or state bankruptcy law or other similar law; (b) No Default the appointment of a trustee or Event receiver of Default shall have occurred and be continuingany property interest; or (c) an assignment for the benefit of creditors.
(ciii) All representations The existence of no exceptions to title or title defects which (x) are not Permitted Exceptions and warranties contained herein shall be true and correct in all (y) would have a material respects at adverse effect on Purchaser’s ownership or Purchaser’s ability to finance the Closing DateProject.
(iv) That between the date of the execution of this Agreement and the Closing, Seller shall: (a) not, without first obtaining the written consent of Purchaser, enter into any contracts, agreements or leases pertaining to the Project; (b) not amend, waive any rights under, modify or terminate the Leases; (c) not convey any Intangible Property or remove from the Project any of the Personal Property; and (d) All legal matters incident maintain and not cancel or permit cancellation of any hazard or liability insurance carried with respect to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may requestProject or its operation.
(ev) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest The physical condition of the Administrative AgentProject shall be the same on the Closing Date as on the Effective Date, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, reasonable wear and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowerstear excepted.
(fvi) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan DocumentsA&R Easement Agreement in all material respects in the form approved by Seller, Seller’s mortgagee and Purchaser in accordance with Section 7.D hereof.
(2vii) certified copies The Title Company is prepared to issue the Title Policy.
(viii) There have been no material adverse changes in the financial condition of CF or Lundbeck between the Effective Date and the Closing.
(ix) Seller request from each Tenant of the articles or Building an estoppel certificate of incorporationin all material respects in the form attached hereto as Exhibit L (each, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3a “Tenant Estoppel Certificate”) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not no more than 30 thirty (30) days prior to the Closing DateDate and, at a minimum, shall deliver to Purchaser such estoppel certificates from CF and Lundbeck disclosing no matters having a material adverse impact on the appropriate state official of any state in which the Borrowers or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may requestProject.
(gx) The Administrative Agent Seller shall have received (l) a Borrowing Base Certificatedeliver to Purchaser an estoppel certificate from the Parkway North Owners’ Association, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006Illinois not-for-profit corporation, in all material respects in the form and substance satisfactory to attached hereto as Exhibit U (the Lender“Association Estoppel Certificate”), (4) disclosing no matters having a material adverse impact on the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect theretoProject.
(h) The Administrative Agent B. In addition to any conditions provided in other provisions of this Agreement, Seller’s obligation to sell the Project to Purchaser is and shall have received a field examination report of be conditioned on the Collateral in form and substance acceptable to it.following:
(i) The Administrative Agent shall have received financing statementdue performance by Purchaser, judgment in every material respect, of each and tax lien searches reflecting that there are no Liens outstanding against every covenant, undertaking and agreement to be performed by it hereunder and the Collateral other than those created or permitted by truth, in every material respect, of each representation and warranty made in this Agreement by Purchaser at the time as of which the same is made and as of the Closing as if made on and as of the Closing.
(ii) That at no time prior to the Closing shall any of the following have been done by or against or with respect to Purchaser: (a) the commencement of a case under Title 11 of the U.S. Code, as now constituted or hereafter amended, or under any other applicable federal or state bankruptcy law or other similar law; (b) the appointment of a trustee or receiver of any property interest; or (c) an assignment for the benefit of creditors.
(iii) The execution and delivery of the A&R Easement Agreement, the Relocation Agreement, the Master Lease and the Sublease in all material respects in the form approved by Seller, Seller’s mortgagee and Purchaser in accordance with Section 7.D hereof.
C. Either party may at any time or times, at its election, waive any of the conditions to its obligations hereunder, but any such waiver shall be effective only if contained in a writing signed by such party. No such waiver shall reduce the rights or remedies of a party by reason of any breach by the other Loan Documentsparty (but if a condition is waived, the party waiving the same may not rescind this Agreement on the basis of the failure of such waived condition). In the event that for any reason any item required to be delivered to a party by the other party hereunder shall not be delivered when required, then such other party shall nevertheless remain obligated to deliver the same to the first party, and nothing (including, but not limited to, the closing of the transaction hereunder) shall be deemed a waiver by the first party of any such requirement. If any of the aforesaid conditions is not fulfilled (or waived in writing) pursuant to the terms of this Agreement, then the party in whose favor such condition exists may terminate this Agreement and (i) provided the failure of such condition is not due to a default by the non-terminating party under this Agreement, upon such termination, Seller and Purchaser shall be released from further obligation or liability hereunder (except for those obligations and liabilities which expressly survive such termination), and (ii) provided that such termination is not due to Purchaser’s default hereunder, the ▇▇▇▇▇▇▇ Money shall be paid to Purchaser and this Agreement shall be null and void.
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (Wells Core Office Income Reit Inc)
Conditions Precedent to Closing. The Closing 4.1 Conditions Precedent to be complied with by the Strategic Partner and the initial disbursement of Principals. The Strategic Partner and the Loans Principals shall be subject to fulfill the following conditions precedentConditions Precedent prior to Closing, unless waived in writing by the Government:
(a) The Loan Documents 4.1.1 All Approvals that may be required for the purpose of implementation of this Agreement shall have been appropriately completed, duly executed obtained by each of the parties thereto, recorded where necessary Strategic Partner and delivered to the Administrative AgentPrincipals.
(b) No Default or Event 4.1.2 All of Default shall have occurred and be continuing.
(c) All the representations and warranties contained herein made by each of the Strategic Partner and the Principals in 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 as of the Closing Date (except as such representations and warranties may be effected by occurrence of events or transactions expressly contemplated or permitted by this Agreement) and the Strategic Partner shall have received (i) a certificate from Government confirming, that to its knowledge, the representations and warranties of Government are true, correct and complete, in all material respects at respects, as of the Closing Date; 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.
(d) All legal matters incident 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 Loans 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 performed or complied with, in all material respect the obligations, covenants and agreements in this Agreement that are to be reasonably satisfactory performed or complied with by the Government and/or the Company, prior to the Administrative Agent, Closing.
4.2.4 The Government and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent Company shall have been properly filed in each office where necessary to perfect executed and delivered the security interest of the Administrative Agent, for the ratable benefit of the Lenders, Shareholders Agreement in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents form attached hereto as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.Exhibit A.
Appears in 2 contracts
Conditions Precedent to Closing. The effectiveness of this Agreement (which shall occur on the Closing and the initial disbursement of the Loans shall be Date) is subject to the satisfaction of the following conditions precedent: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 Loan Documents each Party shall have been appropriately completedreceived, 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 parties theretoTrust and the Custodian;
(d) the Capital Protection Provider shall have received an officer’s certificate of the Fund, recorded where necessary 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 Fund and the Secretary or any Assistant Secretary on behalf of the Fund and which certificate shall include (i) the incumbency and signature of the 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 Administrative Agent.Agent or the Capital Protection Provider pursuant to this Agreement, (ii) true and 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 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;
(be) No Default or Event of Default the Capital Protection Provider shall have occurred 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 continuing.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;
(cf) All 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 herein 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 Fund Event or Knock-Out Event exists as of the Closing Date;
(iii) No licenses, authorizations, consents or approvals as referred to in Section 4.01(n) are required as of the Closing Date or, in the case that such documents are required, that they are required and attaching copies thereof; and
(iv) The Aggregate Protected Amount as of the Closing Date does not exceed the Maximum Settlement Amount;
(j) the Fund shall have arranged with the Custodian for the Capital Protection Provider and the Agent to directly receive the applicable reports and information contained in Schedule II;
(k) 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 at on and as of the Closing Date.;
(dl) All each Party shall have received, in a form satisfactory to it, all corporate and other proceedings, and all documents, instruments and other legal matters incident reasonably requested by such Party evidencing or confirming the accuracy of the representations and warranties made by the other parties hereunder or the authority of such other parties to enter into this Agreement or the Loans other Capital Protection Document to which they are party; and
(m) (i) the registration statement of the Fund shall have been filed with the Commission and become effective, (ii) the investment policies and objectives of the Fund as described in the Prospectus contained in such registration 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 Administrative Agent, and (iii) the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed determined in each office where necessary its reasonable discretion that any modifications to perfect such Prospectus from the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been draft most recently filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days Commission prior to the Closing Datedate 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 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 appropriate state official 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 state in which the Borrowers or the Holding Company are incorporatednon-documentary condition that was not satisfied, and (5) such additional supporting documents as the Administrative Agent non-defaulting Party shall be entitled to exercise any rights it may have hereunder or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements under applicable Law arising out of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement failure of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect theretosuch condition.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 2 contracts
Sources: Capital Protection Agreement (Janus Aspen Series), Capital Protection Agreement (Janus Investment Fund)
Conditions Precedent to Closing. The Closing All obligations of Bridgestone, ITI and the initial disbursement of the Loans shall be ITI Shareholders under this Agreement are subject to the fulfillment, prior to or at the Closing, of all conditions elsewhere herein set forth, including, but not limited to, receipt by the appropriate party of all deliveries required by Section 4 herein, and fulfillment, prior to the Closing, of each of the following conditions precedentconditions:
(a) The Loan Documents respective representations, warranties and covenants of ITI, of the Shareholders, and of Bridgestone contained in this Agreement shall have been appropriately completedbe true at the time of Closing as though such representations, duly executed by the parties thereto, recorded where necessary warranties and delivered to the Administrative Agentcovenants were made at such time.
(b) No Default or Event of Default ITI, the ITI Shareholders and Bridgestone shall have occurred performed and complied with all agreements and conditions required by this Agreement to be continuingperformed or complied with by each prior to or at the Closing.
(c) All representations Each ITI Shareholder acquiring Exchange Stock will be required, at Closing, to submit an agreement, substantially in the form of Exhibit B, confirming that all the Exchange Stock received will be acquired for investment and warranties contained herein not with a view to, or for sale in connection with, any distribution thereof, and agreeing not to transfer any of the Exchange Stock for a period of two years from the Closing Date, except to those persons approved by legal counsel to Bridgestone as falling within an exemption from registration under the Act and any applicable state securities laws, which transfers do not constitute a public distribution of securities, and in which the transferees execute an investment letter in form and substance satisfactory to counsel for Bridgestone. The foregoing provision shall not prohibit the registration of those shares at any time following the Closing. Each ITI Shareholder acquiring Exchange Stock will be true required to transfer to Bridgestone at the Closing his or her respective ITI Shares, free and correct clear of all liens, mortgages, pledges, encumbrances or changes, whether disclosed or undisclosed.
(d) Bridgestone shall have been presented with, and shall have approved, an updated version of Exhibits C and D, prepared by ITI, current as of the Closing.
(e) Each party shall have received favorable opinions from the other party's counsel on such matters in connection with the transactions contemplated by this Agreement as are reasonable, including an opinion from counsel for ITI that the Exchange, if consummated, will not in any manner violate corporate or securities laws of the States of California, Indiana, Louisiana, Nevada, New York, Ohio and any other states where any ITI Shareholder resides.
(g) Each party covenants that, to the best of its knowledge, it has complied in all material respects at with all applicable laws, orders and regulations of federal, state, municipal and/or other governments and/or any instrumentality thereof, domestic or foreign, applicable to their assets, to the business conducted by them and to the transactions contemplated by this Agreement.
(h) Bridgestone shall have provided to ITI through September 30, 1996, all audited and unaudited financial statements prepared in accordance with generally accepted accounting principles and with Regulation S-X, and the audited statements certified as such by independent accountants of Bridgestone.
(i) ITI shall have provided to Bridgestone audited financial statements of ITI for the three most recently completed fiscal years (or for such shorter period as ITI or its subsidiaries, if any, shall have been in existence), prepared in accordance with generally accepted accounting principles and Regulation S-X, together with consolidated unaudited financial statements in the same form for the period from the end of the most recently ended fiscal year to a date within thirty days of the Closing. Such unaudited financial statements of ITI shall have included the following schedules: Schedule of Assets; Schedule of Notes Payable; Schedule of Accounts Payable; and Schedule of Notes Receivable or, in their absence, an affirmation that such items do not exist. ITI shall also provide, as of a date within ten days of Closing, an update of any material change in the aforementioned schedules. In addition, ITI will deliver to Bridgestone, prior to Closing, in a form satisfactory to Bridgestone, a letter from ITI's independent auditors, who shall be a firm satisfactory to Bridgestone, confirming that ITI's financial statements, covering the period from inception to the Closing Date, are auditable and can be prepared in accordance with generally accepted accounting principles and Regulation S-X within seventy-five (75) days of the Closing Date.
(dj) All legal matters incident Each party shall have granted to the Loans other party (acting through its management personnel, counsel, accountants or other representatives designated by it) full opportunity to examine its books and records, properties, plants and equipment, proprietary rights and other instruments, rights and papers of all kinds in accordance with Sections 6 and 8 hereof (and Bridgestone shall have full access to the books and records, to the extent within the control of any affiliate of ITI, of American Registration Systems, Inc., of Advanced Identification Management Systems, Inc., and of any other entity with which ITI has any affiliation), and each party shall be reasonably satisfactory satisfied to proceed with the Administrative Agent, transactions contemplated by this Agreement upon completion of such examination and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may requestinvestigation.
(ek) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists Effective as of the Closing Date, nor would all (or, at Bridgestone's option, all but one) of the members of Bridgestone's current board of directors and each and every person serving as an officer of Bridgestone shall resign their respective positions and/or offices by tendering written resignations. Immediately prior to said resignations, Bridgestone's board of directors shall appoint as members of Bridgestone's new board those persons designated by ITI to fill said director positions, with such appointments to be effective as of the Closing. If all members of Bridgestone's current board of directors (the "Current Board") resign as of the Closing, the parties hereto agree that the Current Board may designate, at any Default time within twelve months following the Closing, one person to serve as a member of the Board. -11-
(l) All press releases, shareholder communications, SEC Filings and other publicity generated by Bridgestone or Event of Default occur after giving effect theretoITI regarding the transactions contemplated by this Agreement shall have been reviewed and approved by the other party before their release to the public or any governmental agency.
(hm) The Administrative Agent Each party shall have received a field examination report satisfied itself that all transactions contemplated by this Agreement, including those contemplated by the exhibits attached hereto, shall be legal and binding under applicable statutory and case law of the Collateral in form States of Delaware and substance acceptable Nevada, respectively, including, but not limited to itNevada's securities laws and all other applicable state securities laws.
(in) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted transactions contemplated by this Agreement shall be approved by the shareholders of ITI, if deemed necessary or appropriate by counsel for the same, within twenty-five (25) days following execution of this Agreement. If such a meeting is deemed necessary, the management of ITI agrees to recommend approval to their Shareholders and to solicit proxies in support of the same.
(o) Either Bridgestone or ITI shall have entered into an employment contract with ▇▇▇▇ ▇. ▇▇▇▇, together with any other Loan Documentspersonnel who might be essential to the operations of ITI, such contracts to be satisfactory to the parties, and, if the contract be with ITI, that Bridgestone shall have ratified, adopted and confirmed the contract.
(p) Each of the Founding Stockholders shall have tendered his or her stock certificate or certificates to Bridgestone, endorsed in blank, to permit the transfer of the Founder's Exchange Stock at Closing as contemplated by Section 2(b).
(q) Either Bridgestone or ITI shall have entered into a consulting agreement with ▇▇▇▇▇▇ ▇▇▇▇▇, such agreement to be satisfactory to the parties, and, if the agreement be with ITI, that Bridgestone shall have ratified, adopted and confirmed the agreement. (r) Either Bridgestone or ITI shall have entered into a consulting agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, such agreement to be satisfactory to the parties, and, if the agreement be with ITI, that Bridgestone shall have ratified, adopted and confirmed the agreement.
(s) Bridgestone shall be satisfied that it is highly likely that ITI shall obtain an equity capital infusion of at least $2,800,000 within 15 business days following the Closing, and such other infusions as shall be sufficient to meet ITI's working-capital needs in the 180-day period immediately following the Closing.
(t) ITI shall have granted to the Founding Stockholders a right to participate in any equity-capital financing, other than an offering pursuant to a registration statement declared effective by the U.S. Securities and Exchange Commission, that ITI might undertake prior to the first anniversary of closing.
Appears in 1 contract
Sources: Plan and Agreement of Reorganization (Bridgestone Corp)
Conditions Precedent to Closing. The Closing and the initial disbursement of the Loans shall be subject to the following conditions precedent:
(a) The Loan Documents following shall be conditions precedent to Purchaser’s obligation to consummate the purchase and sale transaction contemplated herein (the “Purchaser’s Conditions Precedent”):
(i) Purchaser shall not have been appropriately completedterminated this Agreement in accordance with Section 4, duly executed by Section 5, Section 15(a) or Section 15(b) of this Agreement within the parties thereto, recorded where necessary and delivered to the Administrative Agenttime periods described in said Sections.
(bii) No Default or Event Title Company shall be irrevocably and unconditionally committed to issue, at the Closing, an ALTA Owner’s Policy of Default shall have occurred and be continuingtitle insurance (the “Title Policy”), insuring Purchaser’s fee simple interest in the Real Property, dated the day of the Closing, with liability in the amount of the Purchase Price, subject only to the Permitted Exceptions, together with such endorsements as Purchaser may reasonably require.
(ciii) All representations Purchaser shall have received and warranties contained herein approved, at least three (3) days prior to the Closing, an executed estoppel certificate in the form of Exhibit I hereto dated not later than thirty (30) days prior to the Closing from the Tenant under the Lease, with only those changes to the form which are reasonably requested by the Tenant and required by the Lease and reasonably acceptable to Lender (defined below). Purchaser acknowledges that Seller has received comments from Tenant to the form attached as Exhibit I hereto and has provided those comments to Purchaser for delivery to Lender.
(iv) KeyBank National Association (“Lender”) shall have approved and funded a loan in the amount of 65% of the Purchase Price to finance the acquisition of the Property. Without limiting the foregoing, (1) Purchaser shall have received a subordination and non-disturbance agreement (“SNDA”) in the form attached hereto as Exhibit J, executed by Tenant with only those changes reasonably requested by the Tenant and required by the Lease and reasonably satisfactory to Lender (Seller will reasonably cooperate with Purchaser in obtaining an SNDA) and (2) Lender shall have obtained an appraisal satisfactory to Lender indicating that the value of the Property equals or exceeds the Purchase Price. Purchaser acknowledges that Seller has received comments from Tenant to the form attached as Exhibit J hereto and has provided those comments to Purchaser for delivery to Lender.
(v) Each and every representation and warranty of Seller set forth in Section 6 above shall be true true, complete and correct in all material respects at as of the Closing Datedate of Closing.
(dvi) All legal matters incident Seller shall not be in default under any, and shall have otherwise performed in full all, of its material obligations to be performed by Seller under this Agreement at or prior to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may requestClosing.
(evii) Financing statements in form and substance satisfactory to the Administrative Agent Neither Seller nor Tenant shall have been properly filed (or have had filed against it) any proceeding in each office where necessary to perfect the security interest of the Administrative Agentbankruptcy, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all receivership or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowerssimilar proceeding.
(fviii) The Borrowers Seller shall have delivered to the Administrative Escrow Agent the items described in Section 10.
(1ix) certified copies of evidence of all corporate No event constituting a “Material Adverse Change” shall have occurred following the Effective Date hereof and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days prior to the Closing DateClosing. For purposes of this Agreement, from “Material Adverse Change” shall mean any material and adverse change in the appropriate state official of any state in which Tenant (including without limitation its financial condition), Lease, or Tenant performance under the Borrowers or the Holding Company are incorporatedLease, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may requestdetermined by Purchaser.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Gc Net Lease Reit, Inc.)
Conditions Precedent to Closing. The Closing and the initial disbursement of the ------------------------------- Revolving Loans shall be subject to the following conditions precedent:
(a) The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded and or filed where necessary and delivered to the Administrative AgentLender, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrower.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties contained herein shall be true and correct in all material respects at the Closing Datedate of the Closing.
(d) All legal matters incident to the Loans shall be reasonably satisfactory to counsel for the Administrative AgentLender, and the Borrowers agree Borrower agrees to execute and deliver to the Administrative Agent Lender such additional documents and certificates relating to the Loans as the Administrative Agent Lender may reasonably may request.
(e) Financing statements If required by the Lender, the Lender shall have received an opinion of counsel to the Borrower as to such matters as the Lender may request, in form and substance satisfactory to the Administrative Agent Lender and its counsel.
(f) The Lender shall have been properly filed in each office where necessary received a certification by an acceptable provider of financing statement searches of all financing statements of public record which relate or pertain to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the CollateralBorrower and its Subsidiaries, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting not constituting Liens permitted by this Agreement, and all other required releases have been obtained, so that no Liens other than Liens permitted by this Agreement shall exist, and all taxes and fees with respect to such recording and filing shall have been paid by the BorrowersBorrower. The Lender shall also have received a certification by an acceptable provider of judgments and tax lien searches of the absence of any judgements or tax liens of public record against the Borrower and/or the Subsidiaries.
(fg) The Borrowers If requested by the Lender, the Borrower shall have delivered to the Administrative Agent Lender (1i) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company Borrower to authorize the execution and delivery of this Agreement, the Revolving Note and the other Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3ii) a certificate of incumbency for the officers of the Borrowers and the Holding Company Borrower executing the Loan DocumentsDocuments required herein, (4iii) a good standing certificate, certificate dated not more than 30 days prior to the date of the Closing Date, from the appropriate state official of any state in which the Borrowers Borrower is incorporated or the Holding Company are incorporatedqualified to do business, and (5iv) such additional supporting documents as the Administrative Agent Lender or counsel for the Administrative Agent Lender may reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.[Reserved]
(i) The Administrative Agent Lender shall have received financing statement, judgment and tax lien searches reflecting evidence satisfactory to it that there are no Liens outstanding against the Collateral other than those created or permitted Borrower has obtained the insurance required by this Agreement Agreement, including, without limitation, endorsements to the Borrower's insurance policies naming the Lender as loss payee or additional insured, as applicable.
(j) The Lender shall have received such landlord and mortgagee waivers as it shall request.
(k) No material adverse change in the other Loan Documentsfinancial or business condition of the Borrower or a Subsidiary shall have occurred since the date of the most recent financial statements of such Person received by the Lender.
(l) No litigation or proceedings shall be pending or threatened which, in the Lender's sole judgment, will materially and adversely affect the financial condition, operation, or prospects of the Borrower or any Subsidiary.
Appears in 1 contract
Conditions Precedent to Closing. The Closing and (A) Seller’s obligations to consummate the initial disbursement of the Loans shall be transactions contemplated by this Agreement are subject to the following conditions precedentconditions:
(a) i. The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties contained herein made by Buyer in this Agreement shall be true and correct in all material respects when made and on and as of the Closing as though such representations and warranties were made on and as of Closing.
ii. 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.
iii. B▇▇▇▇ shall have executed and delivered to Seller at the Closing each of the Buyer Documents and such additional documents as may be reasonably requested by Seller in order to consummate the transactions contemplated by this Agreement.
(B) Buyer’s obligations to consummate the transactions contemplated by this Agreement are subject to the following conditions:
i. The representations and warranties made by Seller in this Agreement shall be true in all materials 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.
ii. 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.
iii. 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 B▇▇▇▇ in order to consummate the transactions contemplated by this Agreement.
iv. The Title Company shall be ready, willing, and able to issue an ALTA Extended Owner’s Policy with coverage in the amount of the Purchase Price allocated to the Real Property, showing fee title to the Real Property subject only to the Exceptions approved by B▇▇▇▇.
v. No action, suit, or proceeding before any court or any governmental body or authority that would in any way affect the Assets or the ability of the parties to consummate the transactions contemplated by this Agreement shall have been instituted or threatened on or before the Closing Date.
(d) All legal matters incident vi. The Assets shall be in substantially the same condition on the Closing Date as on the Execution Date, and there shall be no material loss or damage to the Loans shall be reasonably satisfactory property prior to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may requestClosing.
(e) Financing statements in form and substance satisfactory to vii. The transactions contemplated under the Administrative Agent Affiliate PSA have been consummated.
viii. The Contingencies shall have been properly filed in each office where necessary satisfied or waived by Buyer on or prior to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements Closing.
ix. Seller shall have been filed timely complied with respect all requirements of a transferor under applicable laws relating to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, bulk transfers and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of provided written evidence of all corporate and company actions taken by the Borrowers and the Holding Company such compliance to authorize the execution and delivery of the Loan Documents, Buyer at least ten (210) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may requestClosing.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (EVO Transportation & Energy Services, Inc.)
Conditions Precedent to Closing. (a) Conditions to the Company's Obligation. The Closing and Company's obligation to -------------------------------------- issue the initial disbursement of the Loans shall be Shares hereunder is subject to the following conditions precedent:
(a) The Loan Documents shall have been appropriately completed, duly executed performance by the parties thereto, recorded where necessary and delivered each Purchaser at or prior to the Administrative AgentClosing 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 of the further condition that the representations and warranties of the Purchasers contained in Section 4 hereof shall be true and correct as of the Closing, or to the waiver of such performance or satisfaction.
(b) No Default or Event Conditions to Each Purchaser's Obligations. The obligations of Default 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 occurred received opinions, addressed to them and be continuingdated as of the Closing, from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. Newborn, II, Esq., General Counsel of the Company, addressing the matters set forth in Exhibits D-1 and D-2 attached hereto;
(cii) All (A) the representations and warranties of the Company contained herein in Section 3 shall be true and correct in all respects, or true and correct in all material respects at where such representations and warranties are not qualified by materiality or Material Adverse Effect, on and as of the Closing Date.
with the same effect as though such representations and warranties had been made as of the Closing and (dB) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent there shall have been properly filed no Material Adverse Change;
(iii) the Company shall have complied in each office where necessary all material respects with all agreements hereunder required to perfect be performed by it at or prior to the security interest Closing;
(iv) the Certificate of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements Designations shall have been filed with respect to any other financing statements covering all or any portion the Secretary of State of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, State of Delaware;
(v) (A) the By-laws and all taxes and fees with respect to such recording and filing (B) the Shareholders' Agreement each shall have been paid amended as contemplated by this Agreement by all necessary corporate action on the Borrowers.part of the Company and the Shareholders;
(fvi) The Borrowers no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of 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 Administrative Agent (1) certified copies Purchasers a certificate, dated as of evidence the Closing, signed on behalf of all corporate and company actions taken the Company by the Borrowers Chairman of the Board of Directors and Chief Executive Officer of the Holding Company and by the President and Chief Operating Officer of the Company to authorize 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 Loan Operative Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.;
(gix) The Administrative Agent the Purchasers shall have received certificates (lor copies thereof) dated as of a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for recent date from the period ended on December 31, 2006, in form and substance satisfactory Secretary of State of the State of Delaware to the Lendereffect that the Company is duly incorporated and in good standing in such state, (4) stating that the financial statements Company owes no franchise taxes in such state and listing all documents of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement file with said Secretary of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.State;
(hx) The Administrative Agent the Purchasers shall have received a field examination report copy of the Collateral in form and substance acceptable to it.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;
(ixi) The Administrative Agent the Purchasers shall have received financing statementevidence, judgment reasonably satisfactory to the Purchasers, of the authority and tax lien searches reflecting that there are no Liens outstanding against incumbency of the Collateral other than those created or permitted 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, to the extent necessary, all of the transactions contemplated thereby shall have been approved by the Requisite Securityholders and (B) each other Operative Document and all 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 other Loan DocumentsCompany; 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 extent necessary to permit the Purchasers collectively to purchase at least $32,500,013 of Shares.
Appears in 1 contract
Conditions Precedent to Closing. The Closing and 5.1 Condition Precedent to the initial disbursement Obligations of the Loans shall be subject to the following conditions precedent:Parties
(a) The Loan Documents It shall be condition precedent to the obligations of the Parties to consummate the transactions contemplated by this Agreement that:
(i) no Government Agency shall have been appropriately completedenacted, duly executed by issued, promulgated, enforced or entered any law, rule, regulation, order, decree or injunction that is in effect on the parties thereto, recorded where necessary Closing Date and delivered to has the Administrative Agenteffect 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) No Default or Event It shall be condition precedent to the obligations of Default shall have occurred EAP and be continuinge▇▇▇▇▇▇.
(c) All ▇▇▇ to consummate the transactions contemplated by this Agreement that each of the representations and warranties of GAP contained herein in this Agreement shall be true and correct in all material respects at when made and on and as of the Closing Date.
Date as if made on and as of such date (d) All legal other than representations and warranties that address matters incident to the Loans only as of a certain date, which shall be reasonably satisfactory to the Administrative Agent, true and the Borrowers agree to execute and deliver to the Administrative Agent correct as of such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateralcertain date), except with respect to financing statements perfecting Liens as contemplated or permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowerse▇▇▇▇▇▇.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent ▇▇▇ shall have received a certificate executed by a director and a company secretary of GAP to such effect; and
(lc) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory It shall be condition precedent to the Lender, (4) obligations of EAP and GAP to consummate the financial statements transactions contemplated by this Agreement that each of the Company for the period ended representations and warranties of e▇▇▇▇▇▇.▇▇▇ contained in this Agreement shall be true and correct in all material respects on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing DateDate as if made on and as of such date (other than representations and warranties that address matters only as of a certain date, nor would any Default which shall be true and correct as of such certain date), except as contemplated or Event of Default occur after giving effect thereto.
(h) The Administrative Agent permitted by this Agreement, and GAP shall have received a field examination report certificate of the Collateral in form President and substance acceptable Chief Financial Officer of e▇▇▇▇▇▇.▇▇▇ to itsuch effect.
5.2 Non-fulfilment of Conditions If (ia) The Administrative Agent 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 received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral any liability to any other than those created person arising out of or permitted by in connection with this Agreement or the other Loan DocumentsAgreement, except in accordance with Sections 1, 3, 12 and 14.3 - 14.17.
Appears in 1 contract
Sources: Joint Venture and Shareholders' Agreement (Entrade Inc)
Conditions Precedent to Closing. The Closing and on the initial disbursement purchase of the Loans Property hereunder shall be subject to and hereby is conditioned upon satisfaction of each of the following conditions precedent:(collectively, the “Conditions Precedent”):
(a) The Loan Documents 6.1 Seller shall have been appropriately completedperformed all of the obligations required to be performed by Seller under this Agreement, duly executed as and when required by this Agreement, in all material respects;
6.2 The representations and warranties of Seller as set forth in 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 parties theretoClosing, recorded where necessary and delivered the Title Company shall have issued or shall have committed to issue, upon the Administrative Agent.sole condition of the payment of its regularly scheduled premium, the Purchaser’s title insurance policy in the form required under this Agreement;
(b) No Default or Event 6.5 As of Default 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 be continuing.
restrictions, condominium declaration or similar instrument (c“CCRs”) All representations and warranties contained herein shall be true and correct in all material respects governing or affecting the use, operation, maintenance, management or improvement of the Property, at the Closing Date.
Closing, or if one or more easements are required to provide access to a public way over the land of others (d) All legal matters incident to the Loans “Easements”), Seller shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
Purchaser (ei) Financing statements estoppel certificates, in form and substance reasonably satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days prior to the Closing DatePurchaser, from the appropriate state official of 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 state in which the Borrowers or the Holding Company are incorporatedEasement, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (lii) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006recordable 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 LenderCCRs, if Seller (4or such affiliate) the financial statements holds such rights or interests and an assignment of the Company for Easement or including same in the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement legal description of the Loans, and certifying that no Default deed all of which shall include any required consents to this transaction. If any of the Conditions Precedent listed above have not been satisfied on or Event of Default exists as of before the Closing Date, nor would this Agreement may be canceled by Purchaser, at Purchaser’s option, by written notice from Purchaser to Seller given on or before the Closing Date 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 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 Default or Event of Default occur after giving effect thereto.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:
(ha) The Administrative Agent shall have received a field examination report Refrain from transferring any of the Collateral in form and substance acceptable Property or creating on the Property any easements, liens, mortgages, encumbrances or other interests which would affect the Property or Seller’s ability to it.comply with the terms of this Agreement;
(ib) The Administrative Agent shall have received financing statementRefrain from entering into any contracts or other commitments regarding the Property, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created in the ordinary and usual course of business, which may be cancelled at Closing without penalty, and which shall be cancelled by Seller at Closing, without the prior written consent of Purchaser;
(c) Keep in effect Seller’s existing policies of insurance insuring the Property;
(d) Refrain from storing, treating, or permitted disposing on the Property any Hazardous or Toxic Substance, as defined hereafter. The term “Hazardous or Toxic Substances,” as used in this Agreement, means any substance the generation, storage, treatment disposal, or transportation of which is prohibited or regulated by this Agreement any law or governmental regulation having as its object the protection of public health, natural resources, or the other Loan Documents.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 applicable State of Michigan environmental acts (collectively, “Environmental Laws”);
Appears in 1 contract
Conditions Precedent to Closing. The Closing and (A) Seller’s obligations to consummate the initial disbursement of the Loans shall be transactions contemplated by this Agreement are subject to the following conditions precedentconditions:
(a) i. The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties contained herein made by Buyer in this Agreement shall be true and correct in all material respects when made and on and as of the Closing as though such representations and warranties were made on and as of Closing.
ii. 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.
iii. ▇▇▇▇▇ shall have executed and delivered to Seller at the Closing each of the Buyer Documents and such additional documents as may be reasonably requested by Seller in order to consummate the transactions contemplated by this Agreement.
(B) Buyer’s obligations to consummate the transactions contemplated by this Agreement are subject to the following conditions:
i. The representations and warranties made by Seller in this Agreement shall be true in all materials 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.
ii. 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.
iii. 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 ▇▇▇▇▇ in order to consummate the transactions contemplated by this Agreement.
iv. The Title Company shall be ready, willing, and able to issue an ALTA Extended Owner’s Policy with coverage in the amount of the Purchase Price allocated to the Real Property, showing fee title to the Real Property subject only to the Exceptions approved by ▇▇▇▇▇.
v. No action, suit, or proceeding before any court or any governmental body or authority that would in any way affect the Assets or the ability of the parties to consummate the transactions contemplated by this Agreement shall have been instituted or threatened on or before the Closing Date.
(d) All legal matters incident vi. The Assets shall be in substantially the same condition on the Closing Date as on the Execution Date, and there shall be no material loss or damage to the Loans shall be reasonably satisfactory property prior to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may requestClosing.
(e) Financing statements in form and substance satisfactory to vii. The transactions contemplated under the Administrative Agent Affiliate PSA have been consummated.
viii. The Contingencies shall have been properly filed in each office where necessary satisfied or waived by Buyer on or prior to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements Closing.
ix. Seller shall have been filed timely complied with respect all requirements of a transferor under applicable laws relating to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, bulk transfers and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of provided written evidence of all corporate and company actions taken by the Borrowers and the Holding Company such compliance to authorize the execution and delivery of the Loan Documents, Buyer at least ten (210) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may requestClosing.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 1 contract
Sources: Asset Purchase Agreement (EVO Transportation & Energy Services, Inc.)
Conditions Precedent to Closing. The Closing following are conditions precedent to Buyers obligations under this Agreement (the "Buyer Conditions Precedent"). The Buyer Conditions Precedent are intended solely for the benefit of Buyer and may be waived only by Buyer in writing. In the initial disbursement event any Buyer Condition Precedent is not satisfied, Buyer may, in its sole and absolute discretion, terminate this Agreement and all obligations of the Loans Buyer and Seller hereunder (except provisions of this Agreement which recite that they survive termination) shall terminate and be subject to the following conditions precedent:of no further force or effect.
(a) The Loan Documents shall have been appropriately completedBuyer's inspection, duly executed by review and approval, within the parties theretoInspection Period, recorded where necessary and delivered to of all aspects of the Administrative AgentReal Property.
(b) No Default or Event The issuance by the Title Company to Buyer of Default shall have occurred the Title Policy subject only to the Approved Title Exceptions and be continuingincluding the Endorsements.
(c) Buyer's receipt, within the Inspection Period, of an "as-built", ALTA/ACSM survey (the "Survey") of the Real Property, reflecting all plottable items referred to in the Preliminary Report, prepared by a surveyor or civil engineer licensed in the State of California, complying with the requirements, and containing the certification, set forth in Exhibit L attached hereto.
(d) All of Seller's representations and warranties contained herein in or made pursuant to this Agreement shall have been true and correct when made and shall be true and correct in all material respects at as of the Closing Date.
(d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent Seller shall have been properly filed fully complied with all of Seller's duties and obligations contained in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers There shall not have delivered to first arisen between the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery end of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization Inspection Period and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days prior to the Closing Date, from any litigation or administrative agency action or other pending governmental proceeding which, after Closing, would, in Buyer's reasonable discretion, materially adversely affect the appropriate state official value of the Real Property or the ability of Buyer to operate the Real Property in the manner in which it is currently being operated, nor any pending proceedings which would cause the redesignation or other modification of the zoning classification of, or of any state in building or environmental code requirements applicable to, any of the Real Property. Seller shall notify Buyer promptly upon Seller's having knowledge of any litigation to which Seller is a party or of any administrative proceeding specifically relating to the Borrowers or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may requestReal Property.
(g) The Administrative Agent Seller shall have received (l) a Borrowing Base Certificate, (2) provided Buyer with an Aging Report, updated Lease Schedule three (3) a contract status and backlog report relating business days prior to Eligible Receivables for Closing, which updated Lease Schedule must not indicate any material adverse change from the period ended on December 31, 2006, in form and substance satisfactory to Lease Schedule last approved by Buyer. Seller shall specifically identify any changes from the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006most recently approved Lease Schedule, and (5) Buyer shall have performed a pro forma Covenant Compliance Certificate, giving effect to closing audit which confirms the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect theretoLease Schedule.
(h) The Administrative Agent Seller shall have received a field examination report terminate prior to the Closing, at no cost or expense to Buyer, any and all Service Contracts or Other Documents affecting the Real Property that are not Assigned Contracts. Concurrently with the expiration of the Collateral in form and substance acceptable Inspection Period, Buyer shall provide to itSeller a list of the Assigned Contracts.
(i) The Administrative Agent In Buyer's reasonable determination there shall not have received financing statementoccurred, judgment between the end of the Inspection Period and tax lien searches reflecting the Closing Date, any material adverse change in or addition to the information or items reviewed and approved by Buyer during the Inspection Period.
(j) Buyers review of the Required Estoppel Certificates to confirm that there are no Liens outstanding against they contain the Collateral other than those created documentation and/or information reasonably requested by Seller, that they have not been modified in any material way, and that they do not contain any assertion of a material default by the Seller. Notwithstanding the foregoing, Estoppel Certificates will not be considered non-conforming if the tenant has revised or permitted deleted Paragraph 12 of the estoppel certificate (which relates to environmental matters) or if the tenant delivers an estoppel certificate 14 substantially in the form required by this Agreement or such tenant's lease; provided, however, that if the other Loan Documentstenant revises Paragraph 12 in a manner that discloses a material breach of the Seller's legal obligations relative to environmental matters, such revision will be subject to Buyer's review and approval.
(k) Buyer's receipt of the Assumption Documentation.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pacific Gulf Properties Inc)
Conditions Precedent to Closing. SECTION 5.1. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE INVESTOR. The Closing and the initial disbursement obligations of the Loans shall be Investor to purchase the Shares hereunder are subject to the satisfaction or the waiver by the Investor of the following conditions precedentprior to or contemporaneously with the Closing, unless otherwise indicated:
(a) The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties of the Company contained herein in this Agreement (except for such representations and warranties as are limited by their terms to an earlier specified date (which shall be true as of such date)) shall be true and correct in all material respects at and as of the Closing Date.; and the Company shall have complied in all material respects with the agreements set forth in this Agreement required to be performed by it at or prior to the Closing;
(b) The Chief Executive Officer of the Company shall have delivered to the Investor at the Closing a certificate stating that the conditions specified in paragraph (a) above been fulfilled;
(c) The Company shall have delivered to the Investor evidence of a key man term life insurance upon the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ in the amount of $1,000,000, with the proceeds payable exclusively to the Company;
(d) All legal matters incident The Company shall have delivered to the Loans shall be reasonably satisfactory to Investor the Administrative Agentopinion of ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, and counsel for the Borrowers agree to execute and deliver to Company, dated the Administrative Agent such additional documents and certificates relating to date of the Loans Closing, substantially in form attached as the Administrative Agent reasonably may request.EXHIBIT D hereto;
(e) Financing statements in form The Company and substance satisfactory to the Administrative Agent Investor shall have been properly filed in each office where necessary to perfect entered into the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Registration Rights Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.;
(f) The Borrowers Certificate of Amendment shall have delivered to been filed in the Administrative Agent (1) certified copies office of, and accepted by, the Secretary of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery State of the Loan Documents, (2) certified copies State of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.Delaware;
(g) The Administrative Agent Company and holders of the requisite number of outstanding shares of Series A, Preferred Series B Preferred and/or Series C Preferred shall have received (l) a Borrowing Base Certificate, (2) enter into an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for amendment substantially in the period ended on December 31, 2006, in form and substance satisfactory attached as EXHIBIT E to the LenderSeries A Preferred Stock Purchase Agreement, (4) dated May 15, 1996, by and among the financial statements of Company, Reliance Insurance Company and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and the Stock Purchase Agreement, dated June 13, 1997 by and among the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the LoansInvestor defined therein, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect theretoapplicable.
(h) The Administrative Agent shall have received a field examination report offer and sale of the Collateral in form and substance acceptable Shares pursuant to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or shall be exempt from the other Loan Documentsregistration requirements of the Securities Act and the registration and/or qualification requirements of all applicable state securities laws.
Appears in 1 contract
Conditions Precedent to Closing. The Closing Lender has entered into this Agreement in reliance upon the Authority’s representations and agreements herein and the initial disbursement performance by the Authority of its obligations hereunder, both as of the Loans date hereof and as of the date of Closing. The Lender’s obligations under this Agreement are and shall be subject to the following conditions precedentfurther conditions:
(a) The Loan at the time of Closing, the Documents shall have been appropriately completed, duly adopted or executed and delivered by the parties theretothereto and shall be in full force and effect and the Documents shall not have been amended, recorded where modified or supplemented, except as may have been agreed to in writing by the Lender, and the 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 delivered to the Administrative Agent.thereby;
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties contained herein shall be true and correct in all material respects at the Closing Date.
(d) All legal matters incident Closing, the Lender shall receive in addition to the Loans shall be reasonably satisfactory to Documents, the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.following:
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by (A) the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificateapproving opinion, dated not more than 30 days prior to the Closing Date, from the appropriate state official date of any state in which the Borrowers or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006Closing, in form and substance satisfactory to the Lender, of Bond Counsel; and (4B) the financial statements opinion of the Company for Authority Counsel and the period ended on December 31County Attorney, 2006in 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 (5C) a pro forma Covenant Compliance Certificatethe 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, giving effect each approving the terms of this Agreement and authorizing this financing. If the Authority shall be unable to satisfy the conditions to the Transaction 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 initial disbursement Authority nor the Lender shall have any further obligations hereunder, except that the representations and warranties of the Loans, and certifying that no Default or Event of Default exists Authority set forth in Section 2 herein (as of the Closing Date, nor would any Default or Event of Default occur after giving effect theretodate made) will continue in full force and effect.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions Precedent to Closing. The Closing respective obligations of each Party and the initial disbursement of Company to consummate the Loans transactions contemplated by this Agreement to occur at the Closing shall be subject to the satisfaction or waiver of the following conditions precedenton or prior to the Closing Date:
(a) The Loan Documents no statute, rule, regulation, executive order, decree, or preliminary or permanent injunction shall have been appropriately completedenacted, duly executed 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 parties theretoJoint Venture Agreements, recorded where necessary and delivered whether temporary, preliminary or permanent; provided that the Parties hereto shall use their reasonable efforts to the Administrative Agent.have any such order, decree or injunction vacated;
(b) No Default or Event of Default all waiting periods and other approvals applicable to the transactions contemplated by the Joint Venture Agreements under the HSR Act, if applicable, shall have occurred 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 continuing.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) All 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 Company contained herein in this Agreement that are qualified as to materiality or words of similar import shall be true and correct in all material respects 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 at the Closing Date.
(d) All legal matters incident to the Loans , except for those representations and warranties which are made as of a specific date, which representations and warranties shall be reasonably satisfactory to the Administrative Agenthave been true and correct in all material respects or true and correct in all respects, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably case may request.be, as of such date; and
(e) Financing statements in form and substance satisfactory to the Administrative Agent each other party hereto shall have been properly filed performed or complied with in all material respects each office where necessary covenant and agreement required in this Agreement to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all be performed by it at or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may requestClosing.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 1 contract
Sources: Contribution and Unit Holders Agreement (Amc Entertainment Inc)
Conditions Precedent to Closing. The Closing and (a) Purchaser’s obligation to close the initial disbursement of the Loans transactions hereunder shall be subject to the satisfaction of the following conditions precedent, provided that Purchaser, at its election, upon written notice delivered to Seller at or prior to the Closing, may waive all or any of such conditions:
(ai) The Loan Documents If Purchaser elects to receive Seller Financing, Seller shall have been appropriately completedexecuted and delivered, duly executed by or shall cause its affiliates to execute and deliver, to Purchaser all of the parties thereto, recorded where necessary and delivered documents required to effectuate the Administrative AgentSeller Financing (the “Seller Financing Documents”).
(bii) No Default or Event of Default Seller shall have occurred executed and be continuingdelivered, or shall have caused its affiliates to execute and deliver, to Purchaser all of the other documents required of Seller under this Agreement.
(ciii) All of Seller’s representations and warranties contained herein set forth in Sections 7, 8(a) and 9(b) of this Agreement shall be true and correct in all material respects at on the Closing Date.
(div) All Seller’s counsel shall have delivered the legal matters incident to opinions required under the Loans shall be reasonably satisfactory to the Administrative Agent, documentation for FL5 and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may requestFL6.
(eb) Financing statements If any condition set forth in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(fSection 6(a) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated is not more than 30 days prior to the Closing Date, from the appropriate state official of any state in which the Borrowers or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists satisfied as of the Closing Date, nor would any Default Purchaser may, in its sole discretion, either (i) waive such condition(s) or Event (ii) terminate this Agreement and receive a refund of Default occur after giving effect theretothe Deposit. Notwithstanding the foregoing, the provisions of this Section 6(b) shall not limit Purchaser’s rights or remedies under Section 13.
(hc) The Administrative Agent Seller’s obligation to close the transactions hereunder shall have received a field examination report be subject to the satisfaction of the Collateral in form and substance acceptable following conditions precedent, provided that Seller, at its election, upon written notice delivered to it.Purchaser at or prior to the Closing, may waive all or any of such conditions:
(i) The Administrative If Purchaser elects to receive Seller Financing, Purchaser shall have executed and delivered, or shall cause its affiliates to execute and deliver, to Seller all of the Seller Financing Documents.
(ii) Purchaser shall have executed and delivered, or shall have caused its affiliates to execute and deliver, to Seller all of the other documents required of Purchaser under this Agreement.
(iii) All of Purchaser’s representations and warranties set forth in Sections 8(b) and 9(a) of this Agreement shall be true and correct in all material respects on the Closing Date.
(iv) Purchaser shall have delivered to Seller the balance of the Purchase Price and the Escrow Agent shall have received financing statementdelivered the Deposit to Seller.
(d) If any condition set forth in Section 6(c) is not satisfied as of the Closing Date, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created Seller may, in its sole discretion, either (i) waive such condition(s) or permitted by (ii) terminate this Agreement (in which event the Deposit shall be refunded to Purchaser). Notwithstanding the foregoing, the provisions of this Section 6(d) shall not limit Seller’s rights or the other Loan Documentsremedies under Section 13.
Appears in 1 contract
Conditions Precedent to Closing. The Closing and the initial disbursement obligations of the Loans Banks to make Advances hereunder shall be subject to not become effective until the date on which each of the following conditions precedent:is satisfied (or waived in accordance with Section 8.01):
(a) The Loan Documents Administrative Agent (or its counsel) shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative AgentAgent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) No Default or Event of Default The Administrative Agent shall have occurred received a favorable written opinion (addressed to the Administrative Agent and be continuingthe Banks and dated the Closing Date) of (i) Jose▇▇ ▇. ▇▇▇▇▇▇, ▇▇., ▇▇unsel for the Borrower, substantially in the form of Exhibit C-1 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 Borrower hereby requests such counsel to deliver such opinions.
(c) All representations and warranties contained herein shall be true and correct in all material respects at the Closing Date.
(d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the The Administrative Agent shall have received such additional documents and certificates relating to the Loans as the Administrative Agent or its counsel may reasonably may request.
(e) Financing statements 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 shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowersits counsel.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(hd) The Administrative Agent shall have received a field examination report certificate, dated the Closing Date and signed by the President, a Vice President or a Financial Officer of the Collateral Borrower, confirming compliance with the conditions set forth in form paragraphs (a) and substance acceptable to it(b) of Section 3.02.
(ie) The Administrative Agent shall have received financing statementall fees and other amounts due and payable on or prior to the Closing Date, judgment including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(f) All consents and tax lien searches reflecting 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 there 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 Previous Credit Agreements shall have 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 (a) 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 Transactions or (ii) could 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.
(i) The consummation of the Transactions shall not (i) violate any applicable law, 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 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 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 foregoing 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 no Liens outstanding against not so satisfied or waived, the Collateral other than those created or permitted by this Agreement or the other Loan DocumentsCommitments 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. The A Closing and the initial disbursement of the Loans shall be subject to occur only if the following conditions precedent:have been and remain satisfied (or waived by the Investor in writing in respect of the relevant Closing):
(ai) The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary Company has filed a Prospectus Supplement in connection with the applicable Draw Notice qualifying the Draw Shares for distribution and delivered such Draw Shares will be free trading upon their issuance (subject only to the Administrative Agent.
(bSection 6(c) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties contained herein shall be true and correct in all material respects at the Closing Date.
(d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agenthereof), and the Borrowers agree Company shall not have received any notice of the suspension of qualification of the Common Shares for offering or sale in any Qualifying Jurisdiction or the initiation of any proceeding for such purpose; Draw Shares shall be free trading under applicable Canadian Securities Laws and DRS statements (or certificates, as applicable) representing the Draw Shares shall contain no restrictive trading legend;
(ii) the issuance of the Draw Shares will not require the Company to execute obtain the approval of its shareholders;
(iii) the issuance of the Draw Shares will not result in the Investor becoming an Insider (and deliver if requested by the Investor the Company will provide a certificate from the transfer agent of the Company as to the Administrative Agent such additional documents number of Common Shares issued and certificates relating to outstanding as at the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days date immediately prior to the Closing Date);
(iv) the Common Shares remain Listed on the NEO;
(v) listing or trading of the Common Shares has not been suspended or threatened to be suspended by the NEO or any Securities Commission during the 20 Trading Days prior to the delivery of the Draw Notice;
(vi) the Draw Shares shall have been conditionally approved for listing by the NEO and all necessary notices and filings will have been made with and all necessary consents, approvals, authorizations or waivers will have been obtained by the Company from the appropriate state official NEO to ensure that, subject to fulfilling the Standard Listing Conditions, the Draw Shares will be listed and posted for trading on the NEO upon their issuance;
(vii) in the sole reasonable discretion of any state in which the Borrowers Investor, no Material Adverse Effect or Change of Control has occurred or is reasonably expected to occur;
(viii) the Holding Company are incorporatedshall have furnished to the Investor a certificate, signed by an officer of the Company, dated the date of the applicable Closing Date, that (A) the Company has duly complied and will continue to comply with all the terms, covenants, and conditions of this Agreement on its part to be complied with up to and following the time of Closing; (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4B) the financial statements representations and warranties of the Company for contained in this Agreement are true and correct as of the period ended on December 31, 2006, applicable time of Closing with the same force and (5) a pro forma Covenant Compliance Certificate, effect as if made at and as of the time of Closing after giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted transactions contemplated by this Agreement or the other Loan Documents.Agreement; and
Appears in 1 contract
Sources: Common Share Subscription Agreement
Conditions Precedent to Closing. The Closing and (a) Purchaser's obligation under this Agreement to purchase the initial disbursement of the Loans shall be Premises is subject to the fulfillment of each of the following conditions precedentconditions:
(a) The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(cA) All of the representations and warranties of Seller contained herein in this Agreement, other than the To Be Updated Representations, shall be true true, accurate and correct in all material respects at as if restated on and as of the Closing Date.
(dB) All legal matters incident Seller shall update the To Be Updated Representations as of the Closing Date to reflect the Loans then present state of facts underlying the To Be Updated Representations (as updated, the "Updated Representations"). A difference between the To Be Updated Representations and the Updated Representations shall not in and of itself constitute a breach of a representation by Seller. Notwithstanding the immediately preceding sentence, it shall be reasonably satisfactory a condition of Purchaser's obligation under this Agreement to purchase the Administrative Agent, and Premises that the Borrowers agree to execute and deliver to Updated Representations do not differ from the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the CollateralTo Be Updated Representations, except with respect to financing statements perfecting Liens permitted by this Agreement, that the facts underlying the representations contained in Paragraphs D and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(fF of Section 7(a)(i) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists be updated as of the Closing Date, nor would respectively, to reflect (I) any Default New Leases or Event Lease amendments or modifications permitted pursuant to Section 9, and (II) any defaults by any tenants under the Leases (subject to the provisions of Default occur after giving effect theretoSection 7(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 3, 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.
(hiv) The Administrative Agent shall have received a field examination report of Title Company is willing to insure, without conditions, fee simple title subject only to the Collateral in form and substance acceptable to itPermitted Exceptions at filed or promulgated rates without additional premiums or endorsements.
(iv) The Administrative Agent In accordance with Section 3(f), either (A) the Mezzanine Lender or Seller shall be ready, willing and able to provide Mezzanine Financing to Purchaser, or (B) Seller shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against disapproved the Collateral other than those created or permitted by this Agreement or terms of the other Loan DocumentsCommitment.
Appears in 1 contract
Conditions Precedent to Closing. The Closing Purchaser’s obligations to carry out the terms of this Agreement and the initial disbursement of the Loans shall be to complete its transactions contemplated under this Agreement are subject to the fulfillment to the satisfaction of Purchaser of each of the following conditions precedentat or prior to the Time of Closing:
A. Each of the Shareholders of BHP and BHP (acollectively, the “BHP Group”) The Loan Documents shall have been appropriately completedcomplied with all of their respective covenants and agreements contained in this Agreement; and
B. The BHP Group shall transfer, duly executed by or will cause to be transferred, to Purchaser one hundred percent (100%) of the parties thereto, recorded where necessary issued and delivered to the Administrative Agent.outstanding BHP membership interests; and
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All C. The representations and warranties of each of the BHP Group contained herein 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 Purchaser and may be waived by Purchaser in whole or in part at any time at or before the Time of Closing, as long as such conditions are waived in writing. BHP’s obligation to carry out the terms of this Agreement and to complete the transactions contemplated under this Agreement are subject to the fulfillment to BHP’s satisfaction of each of the following conditions at or prior to the Time of Closing:
A. Purchaser shall have complied with all of its covenants and agreements contained in this Agreement; and
B. The representations and warranties of Purchaser 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 at the Closing Date.
(d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, as if such representations and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have warranties had been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted made by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists Purchaser as of the Closing Date; and
C. Purchaser shall be current, nor would any Default through March 31, 2017, with its filing obligations with the SEC and/or OTC Markets such that it is labeled as “Current” on OTC Markets; The conditions set forth above are for the exclusive benefit of BHP and may be waived by BHP in whole or Event in part at or before the Time of Default occur after giving effect theretoClosing, as long as such conditions are waived in writing.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 1 contract
Sources: Agreement for the Exchange of Stock (Joblocationmap Inc)
Conditions Precedent to Closing. The Closing and the initial disbursement consummation of the Loans this Plan hereunder shall be subject to the following conditions precedentconditions, to be satisfied prior to or at the Closing:
(a) The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative Agent.That:
(bi) No Default or Event of Default shall have occurred and be continuing.
(c) All all the representations and warranties contained herein shall be true and correct in as of the Closing with the same effect as though made as of and at such date;
(ii) the performance of all material respects 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 Datea 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 other legal, administrative or other proceeding shall have been instituted or threatened that would materially affect the financial condition of any Acquired Fund or Acquiring Fund or would prohibit the transactions contemplated hereby.
(d) All legal matters incident to This Plan shall have been approved by a vote of a "majority of the Loans 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 reasonably satisfactory so approved as to some, but not all, Acquired Funds, then at the Administrative Agentelection of SAST, and the Borrowers agree this Plan may be consummated as to execute and deliver those Acquired Funds as to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may requestwhich this Plan has been so approved.
(e) Financing statements in form MFVAT shall create and substance satisfactory to the Administrative Agent shall have been properly filed in deliver at Closing a statement of assets and liabilities of each office where necessary to perfect the security interest Acquired Fund as of the Administrative Agent, close of trading on the New York Stock Exchange on the Closing Date for the ratable benefit purpose of determining the Lendersnumber 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 the Collateral, termination statements shall have been filed conformity with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowersgenerally accepted accounting principles applied on a consistent basis.
(f) The Borrowers SAST shall have delivered to the Administrative Agent (1) certified copies create and deliver at Closing a statement of evidence assets and liabilities of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery each Acquiring Fund as of the Loan Documents, (2) certified copies close of trading on the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of New York Stock Exchange on the Borrowers and the Holding Company, (3) a certificate of incumbency Closing Date for the officers purpose of determining the Borrowers number of Acquiring Fund shares to be issued pursuant to Section 2 of this Plan, which statement shall accurately reflect its net assets and the Holding Company executing the Loan Documentsoutstanding shares of beneficial interest as of such date, (4) in conformity with generally accepted accounting principles applied on 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may requestconsistent basis.
(g) The Administrative Agent MFVAT, on behalf of each Acquired Fund, shall have received 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 (lthe "Acquiring Fund Custodian"), 225 Franklin Street, Boston, Massachusetts 02110, as follows:
(▇) a Borrowing Base Certificate▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇n book entry form in the name of the Acquired Fund's custodian, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables as record holder for the period ended 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 December 31its records. The Acquiring Fund Custodian shall present at the Closing its written receipt for the portfolio securities of each Acquired Fund.
(h) MFVAT, 2006on 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 LenderAcquired 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:
(4i) MFVAT is a business trust duly organized under the financial 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) Each Acquired Fund is 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 Company for good standing of MFVAT. With respect to all matters of New York law, such counsel shall be entitled to rely on the period ended on December 31opinion of Massachusetts counsel or New York counsel, 2006as applicable, and (5) a pro forma Covenant Compliance Certificate, giving effect may state that their opinion is subject to the Transaction same assumptions, qualifications and limitations with respect to such matters as are contained in the initial disbursement opinion of such Massachusetts counsel or New York counsel, as the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect theretocase may be.
(hl) The Administrative Agent That there shall have received a field examination report of the Collateral be delivered to MFVAT an opinion, in form and substance acceptable 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) The Administrative Agent 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 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 Agreement and Declaration of Trust and By-laws of SAST, and that all other outstanding shares of the Acquiring Funds were sold, issued and paid for in accordance with the terms of 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) 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 SAST or any of the Acquiring Funds that could be required to be disclosed in the applicable Registration Statement and is not so disclosed;
(v) Each Acquiring Fund's shares to be issued pursuant to the 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 shall in each event be at least equal to the net asset value per share, they will have been validly issued and fully paid and will be non-assessable, and no shareholder of any Acquiring Fund has any pre-emptive right to subscribe for or purchase those shares;
(vi) All actions required to be taken by SAST on behalf of the Acquiring Funds to authorize this Plan and to effect the transactions contemplated hereby have been duly authorized by all necessary action on the part of SAST; and
(vii) None of the execution, delivery or performance of this Plan by SAST on behalf of the Acquiring Funds violates any provision of its Agreement and 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 good standing of SAST.
(m) SAST's Registration Statement with respect to the Acquiring Funds' Class 1 shares to be delivered to the Acquired Funds' shareholders in accordance with this Plan shall have received financing statementbecome effective, judgment and tax lien searches reflecting no stop order suspending the effectiveness of 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 no proceedings for the issuance of such an order shall be pending or threatened on that there are no Liens outstanding against date.
(n) 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 Collateral other than those created or permitted by this Agreement or Acquiring Fund's shares lawfully to be delivered to each holder of the other Loan DocumentsAcquired Funds' shares.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Sunamerica Series Trust)
Conditions Precedent to Closing. a. The performance by the Seller of each of its agreements and obligations under this Agreement, including without limitation the obligation to complete the Closing, is conditioned upon the satisfaction (or the Seller’s written waiver) on or prior to the Closing and the initial disbursement Date of all of the Loans shall be subject to the following conditions precedentconditions:
(ai) The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties of the Buyer herein contained herein shall be true and correct in all material respects at on the Effective Date and on the Closing DateDate as though made on such date.
(dii) All legal matters incident The Buyer shall have performed, observed and complied with all agreements and obligations required by this Agreement to the Loans shall be reasonably satisfactory to the Administrative Agentperformed, observed and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may requestcomplied with on its part hereunder.
(eiii) Financing statements in form The Buyer shall have executed and substance satisfactory delivered to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest Seller an Assignment and Assumption of the Administrative Agent, for the ratable benefit of the Lenders, Membership Interests Agreement in the Collateral, termination statements shall have been filed with respect form attached hereto as Exhibit “A,” transferring the Offered Interests to any other financing statements covering all or any portion the Buyer.
b. The performance by the Buyer of the Collateral, except with respect to financing statements perfecting Liens permitted by each of his agreements and obligations under this Agreement, and all taxes and fees with respect including without limitation the obligation to such recording and filing shall have been paid by complete the Borrowers.
Closing, is conditioned upon the satisfaction (for the Buyer’s written waiver) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles on or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 Date of any state in which the Borrowers or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements all of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.following conditions:
(i) The Administrative Agent representations and warranties of the Seller herein contained shall be true and correct in all material respects on the Effective Date and on the Closing Date as though made on such date.
(ii) The Seller shall have received financing statementperformed, judgment observed and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted complied with all agreements and obligations required by this Agreement or to be performed, observed and complied with on its part hereunder.
(iii) The Seller shall have executed and delivered to the other Loan DocumentsBuyer an Assignment and Assumption of Membership Interests Agreement in the form attached hereto as Exhibit “A,” transferring the Offered Interests to the Buyer.
Appears in 1 contract
Sources: Membership Interests Purchase Agreement (GMH Communities Trust)
Conditions Precedent to Closing. (a) The Closing Company’s obligation to complete the purchase and the initial disbursement sale of the Loans Shares and deliver such stock certificate(s) to the Purchaser at the Closing shall be subject to the following conditions precedent:
conditions, any one or more of which may be waived in writing by the Company: (ai) The Loan Documents receipt by the Company of same-day funds in the full amount of the purchase price for the Shares being purchased hereunder; (ii) completion of the purchases and sales under the Agreements with Purchasers of Shares having an aggregate purchase price of at least $20,000,000; (iii) the accuracy of the representations and warranties (as if such representations and warranties were made on the Closing Date) made by the Purchasers and the fulfillment of those undertakings and covenants of the Purchasers required to be fulfilled prior to the Closing; (iv) the Purchaser shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative AgentCompany the Questionnaire and the Registration Statement Questionnaire attached hereto as part of Appendix I (the “Registration Statement Questionnaire”), pursuant to which the 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 any agreement with any Other Purchaser 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; and (vi) the sale of Shares shall not be prohibited by any law or governmental order or regulation.
(b) No Default or Event The Purchaser’s obligation to accept delivery of Default such stock certificate(s) and to pay for the Shares evidenced thereby shall have occurred and be continuing.
subject to the conditions: (ci) All that the representations and warranties contained herein shall be true and correct in all material respects at the Closing Date.
(d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid made by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company herein are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists 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 Common Stock shall be quoted on the Nasdaq National Market System (“Nasdaq”); (iv) the absence of any Material Adverse Change (as defined in Section 4.22 below) affecting the Company since September 30, nor would any Default or Event of Default occur after giving effect thereto.
2004; (hv) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by proceeding challenging this Agreement or the other Loan Documentstransactions 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; (vi) the sale of Shares shall not be prohibited by any law or governmental order or regulation; and (vii) the purchase of Shares having an aggregate purchase price among all Purchasers of at least $20,000,000.
Appears in 1 contract
Sources: Purchase Agreement (Napster Inc)
Conditions Precedent to Closing. Date The Closing and the initial disbursement effectiveness of the Loans shall be this Agreement is subject to and conditional upon the prior satisfaction of the following conditions precedent:
: (a) The duly executed copies of this Agreement and all of the other Loan Documents shall will have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative Agent.
Lender; (b) No Default duly executed copies of the Security will have been delivered to the Lender, all certificates, if any, representing all Equity Interests or Event other securities pledged (along with stock powers duly executed in blank) by the Restricted Parties will have been delivered to the Lender and such financing statements or other registrations of Default shall the Security, or notice thereof, will have occurred been filed and/or registered, entered or recorded in all offices of public record necessary or desirable in the opinion of the Lender to preserve or protect the charges and security interests created thereby, in each case, that are required to be continuing.
delivered on the Closing Date; (c) All the Lender will have completed and have been satisfied with their business, insurance tax, environmental, financial model and legal due diligence with respect to the Group Members (including receiving copies of the Organizational Documents of each of the Excluded Foreign Subsidiaries) and the results of such due diligence will be satisfactory to the Lender; (d) a duly executed Compliance Certificate will have been delivered to the Lender confirming that the Borrower is in compliance with the financial covenants in Section 8.02; - 51 - (e) the Lender will have received certificates of insurance acceptable to the Lender showing, inter alia, the Lender as first loss payee and additional insured, as applicable, as its interest may appear on all Property and third party liability insurance policies of the Restricted Parties; (f) a currently dated letter of opinion of ▇▇▇▇▇▇▇▇’s Counsel and of local counsel to the Restricted Parties in the United States as to such matters and in such form as Lender’s Counsel, acting reasonably, deems appropriate addressed to the Lender and to ▇▇▇▇▇▇’s Counsel will have been delivered to the Lender; (g) the Lender will have received a certificate of an officer of each Restricted Party, certifying, inter alia: (i) copies of its Organizational Documents, (ii) the resolutions authorizing the execution and delivery of, and performance by, such Restricted Party of its obligations under the Loan Documents to which such Restricted Party is a party and the transactions contemplated therein; (iii) a certificate as to the incumbency of the officers of such Restricted Party executing the Loan Documents to which it is a party and any other documents or instruments to be provided pursuant to the provisions of the Loan Documents; and (iv) such Restricted Party has received all shareholder, regulatory, governmental and other approvals required in order for such Restricted Party to enter into the Loan Documents to which it is a party and to perform its obligations thereunder; (h) a certificate of status (or equivalent) in respect of each of the Restricted Parties will have been delivered to the Lender; (i) the representations and warranties contained herein shall deemed to be made pursuant to Section 7.01 will be true and correct in all material respects at the Closing Date.
(d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest an officer of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall Borrower will have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to certified as such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, ; (4j) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of will have occurred and be continuing on the Closing Date, nor or would result from any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by Restricted Party’s entry into this Agreement or the transactions contemplated hereunder and an officer of the Borrower will have certified as such to the Lender; (k) no Material Adverse Change will have occurred and be existing and an officer of the Borrower will have certified as such to the Lender; (l) the Lender will have received evidence satisfactory to the Lender that all Debt of the Group Members (other Loan Documents.than Permitted Debt) has been repaid and performed in full; (m) releases, discharges, estoppels and postponements that are required (if any) in the discretion of the Lender (in registerable form where necessary) with respect to all Encumbrances affecting the Collateral that are not Permitted Encumbrances, if any, will have been delivered to the Lender; (n) the Lender will have received payment of all fees and expenses payable to the Lender that are due and payable on the Closing Date (including (i) the upfront fee payable pursuant to the Fee Letter, and (ii) the reasonable fees and disbursements of ▇▇▇▇▇▇’s Counsel);
Appears in 1 contract
Sources: Credit Agreement (Docebo Inc.)
Conditions Precedent to Closing. The Closing and the initial disbursement closing of the Loans shall Superpriority Facility will be subject to satisfaction or waiver by the Majority Consenting Parties of the following conditions precedent:
: (a) The Loan Documents execution of the Superpriority Facility and related loan documents; provided that if any required collateral and guarantee items other than the filing of UCC financing statements and IP security agreements with the USPTO and USCO and the delivery of possessory collateral cannot be satisfied at closing, the Company and the Majority Consenting Parties shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered agree to the Administrative Agent.
reasonable extensions of time for such items to be completed on a post-closing basis; (b) No Default or Event delivery of Default shall have occurred and be continuing.
the Intercreditor Agreements (as defined below); (c) All all of the representations and warranties contained herein in the Superpriority Loan Documents shall be true and correct in all material respects at the Closing Date.
(d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lendersor if qualified by materiality or material adverse effect, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(frespects) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor or if such representation speaks as of an earlier date, as of such earlier date; (d) no default or event of default under the Superpriority Facility shall have occurred or be continuing; (e) no default or event of default under the Transaction Support Agreement shall have occurred or be continuing; (f) no event or circumstance that, individually or in the aggregate with other events or circumstances, has had or would any Default or Event reasonably be expected to have a Material Adverse Effect, shall have occurred from the signing of Default occur after giving effect thereto.
the Transaction Support Agreement; (g) delivery of a customary borrowing notice and solvency certificate; (h) The Administrative Agent shall have received delivery of a field examination report customary expert opinion (“Sanierungsgutachten”) confirming that a sustainable restructuring of the Collateral in form and substance acceptable to it.
German obligors is more likely than not; (i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral delivery of legal opinions (other than those created or permitted by this Agreement or with respect to no conflicts) reasonably acceptable to the other Loan Documents.Majority Consenting Parties, including from any local counsel to the loan parties; (j)
Appears in 1 contract
Sources: Transaction Support Agreement (DIEBOLD NIXDORF, Inc)
Conditions Precedent to Closing. The Closing and (a) Purchaser's obligation under this Agreement to purchase the initial disbursement of the Loans shall be Premises is subject to the fulfillment of each of the following conditions precedent:conditions, subject, however, to the provisions of Section 10(c):
(ai) The Loan Documents representations and warranties of Seller contained herein shall be 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 been appropriately completeddelivered all the documents and other items required pursuant to Section 11, duly executed 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 parties thereto, recorded where necessary and delivered Seller at or prior to the Administrative AgentClosing.
(b) No Default or Event Seller's obligation under this Agreement to sell the Premises to Purchaser is subject to the fulfillment of Default shall have occurred and be continuing.each of the following conditions, subject, however to the provisions of Section 10(c):
(ci) All the representations and warranties of Purchaser contained herein shall be true true, accurate and correct in all material respects at as of the Closing Date.;
(dii) All legal matters incident Purchaser shall have delivered the funds required hereunder and all the 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 Loans shall be reasonably satisfactory Closing;
(iii) all consents and approvals of governmental authorities and parties to agreements to which Purchaser is a party or by which Purchaser's assets are bound that are required with respect to the Administrative Agent, and consummation of the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent transactions contemplated by this Agreement shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements obtained and copies thereof shall have been filed with respect delivered to any other financing statements covering all Seller at or prior to the Closing;
(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 portion of its assets unless the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing same shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days discharged prior to the Closing Date, from the appropriate state official of any state in which the Borrowers and no such receiver, liquidator or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent trustee shall have received (l) a Borrowing Base Certificateotherwise been appointed, (2) an Aging Report, (3) a contract status and backlog report relating unless same shall have been discharged prior to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would (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 Default bankruptcy, reorganization, insolvency, readjustment or Event debt, dissolution or liquidation law or statute, or filed an answer admitting the material allegations of Default occur after giving effect theretoa 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, cancelled or terminated prior to the Closing Date; and
(v) [INTENTIONALLY DELETED].
(hc) The Administrative Agent In the 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 received a field examination report of as its sole remedy hereunder the Collateral in form and substance acceptable right to it.
elect to (i) The Administrative Agent waive such unsatisfied condition whereupon title shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by close as provided in this Agreement or (ii) terminate this Agreement. In the other Loan Documentsevent such party elects to terminate this Agreement, this Agreement shall be terminated, the Fund shall be returned to the Purchaser, 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. The Closing and the initial disbursement of the Loans Lenders shall not be subject obligated to make any Loan, or to take, fulfill, or perform any other action under this Agreement, until the following conditions precedenthave been satisfied to Agent’s reasonable satisfaction or waived in writing by Agent:
4.1.1 Agent shall have received:
(a) The Loan Documents shall have been appropriately completedoriginals of the documents set forth on Schedule 1.1h (Schedule of Documents), each duly executed by the parties theretoappropriate parties, recorded where necessary and delivered together with such other assurances, certificates, documents or consents related to the Administrative Agent.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 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 transactions contemplated by this Agreement or 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 Closing Date;
4.1.6 All of the representations and warranties of Borrower under this Agreement shall be true and correct as of the Closing Date;
4.1.7 Borrower shall be in compliance with all the terms and provisions of the Loan Documents, and no Default or Event of Default (other than the Specified Events of Default) shall have occurred and be continuing;
(a) 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, and (b) if Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall have provided a Beneficial Ownership Certification to Agent if so requested;
4.1.9 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;
4.1.10 Receipt of a fully-executed amended engagement letter for B. ▇▇▇▇▇’▇ engagement by Borrower, satisfactory to all Lenders.
4.1.11 Borrower’s board of directors, at Borrower’s costs, shall have engaged a consultant (c“Financial Advisor/Consultant”) All representations for Borrower to report to Borrower’s board of directors, which Financial Advisor/Consultant to be selected from candidates submitted by Lenders and warranties contained herein shall be true the terms of whose engagement and correct scope of work and responsibilities set forth in all material respects at the Closing Dateengagement letter approved by Lenders.
(d) 4.1.12 All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance Loan Documents shall be satisfactory to the Administrative Agent shall have been properly filed in each office where necessary Sheppard, Mullin, R▇▇▇▇▇▇ & H▇▇▇▇▇▇ LLP, legal counsel to perfect the security interest of the Administrative AgentMUFG Union Bank, for the ratable benefit of the LendersN.A., in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.its capacities hereunder; and
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative 4.1.13 Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006Account Control Agreements, in form and substance satisfactory to the LenderAgent, (4) the financial statements of the Company for the period ended on December 31deposit accounts maintained by Borrower (other than the Restricted Account) and Guarantor Subsidiaries. If any other term of any Loan Document should conflict, 2006or appear to conflict, with this Section 4.1, the terms of this Section 4.1 shall control, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent Borrower shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by rights under this Agreement or the any other Loan DocumentsDocument until each of the conditions of this Section 4.1 has been complied with to Agent’s and Lenders’ satisfaction or specifically waived in a writing by Lenders.
Appears in 1 contract
Conditions Precedent to Closing. The Closing and the initial disbursement (i) Conditions of the Loans shall be Investors’ Obligations at the Closing. The obligations of each Investor to consummate the Closing under this Agreement are subject to the fulfillment, to the satisfaction of such Investor on or prior to the Closing, or waiver by such Investor, of the following conditions precedentconditions:
(a) The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary representations and delivered to warranties contained in Section 5 remaining true and accurate in all material respects on the Administrative Agent.Closing Date;
(b) No Default the Company having performed and complied with all of its agreements and obligations contained in this Agreement to which it is a party that are required to be performed or Event complied with by it on or before the date of Default shall have occurred and be continuing.Closing;
(c) All representations the Company having duly attended to and warranties contained herein shall be true carried out all corporate procedures that are required under the applicable laws of its place of incorporation or establishment to effect its execution, delivery and correct performance of the Basic Documents to which it is a party, and the transactions contemplated hereby and thereby, and having provided copies of all resolutions (and all attachments thereto) in all material respects at accordance with applicable law approving the Closing Date.transactions contemplated hereby;
(d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agentall consents and approvals of, notices to, and the Borrowers agree filings or registrations with, any Governmental Authority or any other Person required pursuant to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.any applicable law or regulation of any Governmental Authority having been obtained or made;
(e) Financing statements there having been since the date of this Agreement no material adverse change in form the business, operations and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest financial position of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.Group,
(f) The Borrowers shall have the Company having delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by Investors a Closing Certificate, dated the Borrowers and the Holding Company to authorize the execution and delivery date of the Loan Documents, (2) certified copies Closing and signed by an authorized officer of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, certifying that the conditions set forth in paragraphs (3a) a certificate through (f) of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.this Section have been satisfied;
(g) The Administrative Agent shall have the Investors having received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status Cayman Islands opinion from ▇▇▇▇▇▇ and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form ▇▇▇▇▇▇ and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists dated as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report date of the Collateral in form and substance acceptable to itClosing.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 1 contract
Sources: Convertible Note Purchase Agreement (LightInTheBox Holding Co., Ltd.)
Conditions Precedent to Closing. The Closing and Note Purchaser will have no obligation to consummate the initial disbursement of the Loans shall be subject to the following conditions precedenttransactions contemplated by this Agreement unless:
(a) The Loan each of the Basic Documents shall be in full force and effect and all consents, waivers and approvals necessary for the consummation of the transactions contemplated by the Basic Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary obtained and delivered to the Administrative Agent.shall be in full force and effect;
(b) No Default or Event all conditions to the issuance of Default the Notes under the Indenture and under SECTION 2.1(b) of the Sale and Servicing Agreement shall have occurred been satisfied and be continuing.all conditions to each Advance, including the initial Advance, set forth under SECTION 6.02 hereof have been satisfied;
(c) All 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) a duly executed and delivered original counterpart of each Basic Document (other than any Basic Document that contemplates delivery on a date after the Restatement Effective Date), each such document being in full force and effect;
(ii) certified copies of charter documents and each amendment thereto, and resolutions of the 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 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 contained herein shall be 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 Closing Restatement Effective Date.;
(dv) All legal matters incident a certificate of a senior officer of the Issuer to the Loans shall 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 reasonably satisfactory performed or satisfied at or prior to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates Restatement Effective Date;
(vi) legal opinions (including opinions relating to the Loans as the Administrative Agent reasonably may request.
(etrue sale, non-consolidation, UCC, enforceability and corporate matters) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed 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 office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificatecase, dated not more no earlier than 30 15 days prior to the Closing Restatement Effective Date, from the appropriate state official of any state in which the Borrowers or the Holding Company are incorporated, and ; and
(5x) such additional supporting documents other documents, opinions and information as the Administrative Agent or counsel for the Administrative Agent Note Purchaser may reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 1 contract
Sources: Note Purchase Agreement (Consumer Portfolio Services Inc)
Conditions Precedent to Closing. 14.1 The Closing obligations of Contributor to deliver an executed and acknowledged Assignment of Contributor's Interest, and the initial disbursement of Owners to provide insurable title to the Loans 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 precedent:(all or any of which may be waived, in whole or in part, by the Owners):
(a) The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties contained made by the Company herein shall be true and correct in all material respects at with the same force and effect as though such representations and warranties had been made on and as of the Closing Date;
(b) the Company shall have executed and delivered to Contributor all of the documents provided herein for said delivery;
(c) there shall not have 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 material covenants and material obligations undertaken by the Company herein in all respects and complied with all material conditions required by this Agreement to be complied with or performed by it on or before the Closing Date.
(d) All legal matters incident 14.2 The obligations of the Company to deliver the Certificates to the Loans 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 reasonably satisfactory subject to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
following conditions (e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateralwhich may be waived, except with respect to financing statements perfecting Liens permitted by this Agreementin whole or in part, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.Company):
(fa) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate representations and company actions taken warranties made by the Borrowers Owners herein shall be true and correct in all material respects with the Holding Company to authorize the execution same force and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization effect as though such representations and operating agreement of the Borrowers warranties had been made on and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists 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, nor would 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 Default or Event of Default occur after giving effect thereto.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
(h) The Administrative Agent the Property shall have received a field examination report of be in compliance with the Collateral 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 any amending or successor legislation and regulations now or hereafter existing with respect to the Property. In the event that the Property is not in form 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 substance acceptable any amending or successor legislation and regulations now or hereafter existing with respect to it.
(i) The Administrative Agent the Property, then the Company's sole remedies shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by 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 void and of no further force or effect and neither party shall have any further liability or obligation to the other Loan Documentsunder or by virtue of this Agreement. In the event 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, 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. The Closing and the initial disbursement of the Loans shall be subject to the following conditions precedent:
(a) The Loan Documents obligations of REDCELL and the SELLERS under this Agreement shall have been appropriately completedbe and are subject to fulfillment, duly executed by prior to or at the parties theretoClosing, recorded where necessary and delivered to of each of the Administrative Agent.following conditions:
(bi) No Default or Event of Default shall have occurred and be continuing.
(c) All That REDCELL's 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 MANAGEMENT will deliver an executed certification confirming the foregoing;
(ii) That REDCELL and REDCELL's MANAGEMENT shall have performed or complied with all agreements, terms and conditions required by this Agreement to be performed or complied with by them prior to or at the time of the Closing;
(iii) That REDCELL's directors and shareholders, by proper and sufficient vote taken either by consent or at a meeting duly and properly called and held, shall have properly approved all of the matters required to be approved by REDCELL's directors and shareholders, respectively;
(iv) That REDCELL's Board of Directors, by proper and sufficient vote, shall have approved this Agreement and the transactions contemplated hereby; approved the change of INFOBOOTH's corporate name to REDCELL POWER CORPORATION; approved the resignation of all of INFOBOOTH's current directors and the election of up to three designees of REDCELL to serve as directors in all material respects place of INFOBOOTH's current directors; and will have approved such other changes as are consistent with this Agreement and approved by REDCELL and INFOBOOTH; and
(b) The obligations of INFOBOOTH and INFOBOOTH'S MANAGEMENT under this Agreement shall be and are subject to fulfillment, prior to or at the Closing Date.
(d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in of each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.following conditions:
(i) The Administrative Agent That INFOBOOTH's 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 INFOBOOTH shall deliver an executed certification confirming the foregoing;
(ii) That INFOBOOTH shall have received financing statementperformed or complied with all agreements, judgment terms and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted conditions required by this Agreement to be performed or complied with by them prior to or at the other Loan Documents.time of Closing; and
(iii) That INFOBOOTH's directors and shareholders, by proper and sufficient vote taken either by consent or at a meeting duly and properly called and held, shall have properly approved all of the matters required to be approved by INFOBOOTH's directors and shareholders, respectively;
Appears in 1 contract
Conditions Precedent to Closing. The Closing Lender has entered into this Bond Purchase Agreement in reliance upon the Authority’s representations and agreements herein and the initial disbursement performance by the Authority of its obligations hereunder, both as of the Loans 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 conditions precedentfurther conditions:
(a) The Loan at the time of Closing, the Documents and the Bond shall have been appropriately completed, duly executed and delivered by the parties theretothereto and shall be in full force and effect and the Documents and the Bond shall not have been amended, recorded where modified or supplemented, except as may have been agreed to in writing by the Lender, and the 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 delivered to the Administrative Agent.thereby;
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties contained herein shall be true and correct in all material respects at the Closing Date.
(d) All legal matters incident Closing, the Lender shall receive in addition to the Loans shall be reasonably satisfactory to the Administrative Agent, Bond and the Borrowers agree to execute and deliver to Documents, the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.following:
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by (A) the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificateapproving opinion, dated not more than 30 days prior to the Closing Date, from the appropriate state official date of any state in which the Borrowers or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006Closing, in form and substance satisfactory to the Lender, of Bond Counsel (4including an opinion that the Bond is “bank qualified”); and (B) the financial statements opinion of the Company for County Attorney and of Authority Counsel, in the period ended on December 31forms attached hereto as Exhibits B and C, 2006with 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 (5C) 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 pro forma Covenant Compliance Certificatenational or international crisis materially affecting, giving effect 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 Transaction 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) the representations and warranties of the Authority and the initial disbursement of the LoansCounty set forth in Section 2 and Section 3, and certifying that no Default or Event of Default exists respectively, herein (as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
date made) will continue in full force and effect; and (hii) The Administrative Agent shall have received a field examination report the obligations of the Collateral County to pay the expenses and costs set forth in form and substance acceptable to itSection 6 shall continue.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions Precedent to Closing. The Closing and the initial disbursement making of the DIP Loans under the DIP Facility shall be subject to the following conditions precedent:
: (ai) The Loan Documents execution and delivery of a credit agreement (the “DIP Credit Agreement”) and other Definitive Documentation evidencing the DIP Facility, in each case, which shall be in form and substance substantially consistent with this Term Sheet and otherwise reasonably acceptable to the Required Lenders and the Borrower; (ii) the Petition Date shall have occurred, and the Borrower and each Guarantor shall be a debtor and a debtor-in-possession; (iii) the RSA shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered entered into prior to the Administrative Agent.
(b) No Default or Event of Default shall have occurred Petition Date and be continuing.
(c) All representations and warranties contained herein shall be true in full force and correct in all material respects at effect; (iv) entry of the Closing Date.
Interim Order; (dv) All legal matters incident to delivery of the Loans Budget, which shall be in form and substance reasonably satisfactory to the Administrative Agent, Required Lenders; (vi) all proposed “first day orders” and motions to be filed at the Borrowers agree to execute time of commencement of the Cases or shortly thereafter shall have been reviewed in advance by the Required Lenders or their counsel and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements shall be in form and substance reasonably satisfactory to the Administrative Agent Required Lenders; (vii) no trustee, examiner, or receiver shall have been properly appointed or designated with respect to the Debtors’ business, properties or assets, which, if granted, would result in a person other than the Debtors exercising control over the Debtors’ assets; (viii) all “first day orders” entered by the Bankruptcy Court pertaining to cash management and adequate protection and all motions and documents filed with the Bankruptcy Court in each office where necessary connection therewith, shall be in form and substance reasonably acceptable to perfect the security interest of Required Lenders; (ix) all fees and expenses (including, without limitation, legal fees and expenses) payable under the Administrative Agent, for Definitive Documentation or otherwise to be paid to the ratable benefit of DIP Agent and the DIP Lenders, in on or before the Collateral, termination statements Closing Date shall have been filed with respect paid; (x) since June 12, 2025, there will have been no event or occurrence which would reasonably be expected to any have a material adverse effect on the Debtors’ business, operations, properties, assets, condition (financial or otherwise) or liabilities, taken as a whole (other financing statements covering all than events leading up to the Cases and events that would reasonably be expected to result from the filing or any portion commencement of the Collateralproceedings under chapter 11 of the Bankruptcy Code and the continuation and prosecution thereof, including any decline in business relationships, reputation, or financial performance resulting from the Chapter 11 filing), on the ability of the Debtors, taken as a whole, to perform their respective payment obligations under the DIP Credit Agreement and the other Definitive Documentation (other than as a result of events leading up to and resulting from the commencement of the Cases and the continuation and prosecution thereof), or the ability of the DIP Agent and DIP Lenders to enforce their rights and remedies under the Definitive Documentation (provided, that any effects resulting from changes in general economic conditions, financial markets, industry conditions, or geopolitical events, except with respect to financing statements perfecting Liens permitted by this Agreementthe extent such effects have a materially disproportionate impact on the Borrower relative to similarly situated companies, shall not constitute a material adverse effect and all taxes and fees with respect no event shall constitute a material adverse effect to the extent such recording and filing shall have been paid event is expressly addressed by the Borrowers.
milestones or Budget variances set forth in the Definitive Documentation), (fxi) The Borrowers shall have delivered receipt by the DIP Lenders of customary officer and secretary certificates and other customary closing documents; provided, that, notwithstanding anything herein to the Administrative Agent contrary, no legal opinions or solvency certificates shall be required in connection with the DIP Facility, (1xii) certified copies of evidence receipt by the DIP Lenders of all corporate documentation and company actions taken other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, to the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, extent requested not less than five (25) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 business days prior to the Closing Date, from and (xiii) the appropriate state official DIP Loan Parties shall have delivered UCC financing statements, in suitable form for filing with the applicable secretary of any state in which the Borrowers or the Holding Company are incorporatedstate, and shall have made arrangements for the filing of such UCC financing statements with the applicable secretary of state and for the recording of the DIP Order with the applicable real property recording offices, in each case, that are reasonably acceptable to the DIP Agent and shall (a) file the UCC financing statements and provide evidence to the DIP Agent of such filing within five (5) Business Days after the Closing Date and (b) record the DIP Order with the applicable real estate recording offices and provide evidence of such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory recording to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists DIP Agent as of soon as reasonably practicable after the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 1 contract
Sources: Restructuring Support Agreement (Office Properties Income Trust)
Conditions Precedent to Closing. The Closing and the initial disbursement obligations of the Loans Parties under this Agreement shall be and are subject to fulfillment, prior to or at the Closing, of each of the following conditions precedentconditions:
(a) The Loan Documents shall have been appropriately completed, duly executed by Each of the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties of the Parties contained herein shall be true and correct in all material respects at the time of the Closing Date.Date as if such representations and warranties were made at such time except for changes permitted or contemplated by this Agreement;
(b) The Parties shall have performed or complied with all agreements, terms and conditions required by this Agreement to be performed or complied with by them prior to or at the time of the 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) approving the Share Exchange and the other actions set forth herein; (ii) increasing or directing the size of the 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 directors of ALAS to be effective as of the later of the Closing Date or within 10 days of filing Form 14-F; (iv) an amendment to the Company’s Certificate of Incorporation changing its name to “Excellux, Inc.”;
(d) All legal matters incident to the Loans The Company shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute prepare and deliver to OELC for review, a Form 8-K filing as required to be filed with the Administrative Agent such additional documents Securities and certificates relating to Exchange Commission in connection with the Loans as the Administrative Agent reasonably may request.execution of this Agreement;
(e) Financing statements in form and substance satisfactory 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 Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest acquisition of the Administrative Agent, for the ratable benefit OELCs Shareholders and their designees of 33,000,000 shares of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the BorrowersCommon Stock as set forth on OELC Disclosure Schedule 1.1.
(f) The Borrowers Company shall have delivered prepare and deliver to OELC for review, a Schedule 14-F filing to be filed with the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days prior to Commission on the Closing Date, from the appropriate state official of any state in which the Borrowers or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.date;
(g) The Administrative Agent Company shall have received deliver letters of resignation of its current officers and directors to be effective ten (l10) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for days following the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements filing of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.Schedule 14-F;
(h) The Administrative Agent Company shall have received delivered deliver to the Escrow Agent a field examination report total of 33,000,000 shares of Common Stock of the Collateral in form Company for delivery to the OELCs shareholders and substance acceptable to it.their designees;
(i) The Administrative Agent Company shall have received financing statementuse its reasonable best efforts to prepare and complete the documents necessary to be filed with local, judgment state and tax lien searches reflecting that there are no Liens outstanding against federal authorities to consummate the Collateral other than those created transactions contemplated hereby, including a Schedule 14C Information Statement or permitted by 14A Proxy Statement as to the 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 or and clear comments with the other Loan Documents.SEC as to same as may be required; and
Appears in 1 contract
Conditions Precedent to Closing. The Closing and the initial disbursement obligations of the Loans shall each Venturer under this Agreement shall, at its option, be subject to the satisfaction, on or prior to the Closing Date, of the following conditions precedentconditions:
(a) The Loan Documents There shall have been appropriately completed, duly executed no material breach by any Venturer in the parties thereto, recorded where necessary performance of any of its covenants and delivered to agreements herein; each of the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties contained herein of the other Venturer shall be true and correct in all material respects at on the Closing Date.
(d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans Date as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days prior to though made on the Closing Date, except for changes therein specifically permitted by this Agreement or resulting from any transaction expressly consented to in writing by the appropriate state official other Venturer and except that any representation or warranty made as of any state in which a specified date pursuant to the Borrowers or the Holding Company are incorporated, express terms of this Agreement shall be true and (5) correct as of such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent date; and there shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory been delivered to the Lenderother Venturer a certificate or certificates to such effect, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists dated as of the Closing Date, nor would signed on behalf of the other Venturer by the President or other senior officer of such other Venturer.
(b) No action, suit or proceeding shall have been instituted or threatened to restrain or prohibit or otherwise challenge the legality or validity of the transactions contemplated hereby.
(c) The parties shall have received all governmental regulatory approvals, if any, necessary to consummate the transactions contemplated hereby which are required to be obtained on or prior to the Closing by applicable law or regulations.
(d) UWIC and HCSC shall have obtained commitments for excess reinsurance agreements that are reasonably acceptable to the parties.
(e) The Company and UWIC shall have executed the Underwriting Management Agreement.
(f) On or prior to the tenth business day after the execution of this Agreement, the parties shall have executed a Stock Purchase Commitment pursuant the terms and conditions of which;
(i) United Wisconsin Services, Inc. shall purchase from HCSC 50% of the Common Stock (the "Purchased Stock") of Third Coast Holding Company (including its subsidiaries) (collectively "Third Coast") and contribute the Purchased Stock to the Company.
(ii) HCSC shall contribute the remaining 50% of the Common Stock of Third Coast to the Company.
(iii) United Wisconsin Services, Inc. shall pay for the Purchased Stock with Common or Preferred stock of United Wisconsin Services, Inc., notes of United Wisconsin Services, Inc., cash, or any Default combination thereof at UWS's option, having a value equal to 50% of the adjusted book value of Third Coast as determined by an independent appraiser satisfactory to both parties; provided that the parties shall use their best efforts to cause Third Coast to be able to pay to HCSC, prior to the Closing of the purchase and sale of the Purchased Stock, the surplus notes owed by Third Coast to HCSC for the Purchased Stock. In the event that the parties do not agree to a Stock Purchase Commitment on or Event before the tenth business day after the execution of Default occur this Agreement, either party may terminate this Agreement and neither party shall have any liability to the other party with respect to the transactions described herein. In connection with the Stock Purchase Commitment, the parties shall negotiate in good faith to amend Article 3 of this Agreement to have HCSC receive the economic effect of a ceding of 50% of the Company's business written after giving effect theretothe closing of the Stock Purchase Commitment.
(g) Third Coast and the Company shall have executed an Administrative Services Agreement relating to the administration of claims on policies written by Third Coast prior to the closing of the transactions contemplated by Section 6.2(f) hereof.
(h) The Administrative Agent Company, HCSC and UWS shall have received agreed on a field examination report of business plan and cash flow projection relating to the Collateral in form and substance acceptable to itCompany.
(i) The Administrative Agent UWS shall have received financing statement, judgment and approval of this Agreement by its Board of Directors.
(j) UWS shall have received an unqualified opinion of tax lien searches reflecting counsel of UWS's choice that there are no Liens outstanding against the Collateral other than those created or permitted consummation of the transactions contemplated by this Agreement will not, either by itself or in combination with any other transaction, cause the spin-off of UWS's managed care and specialty businesses from its small group businesses to be taxable in whole or in part to UWS, American Medical Security Group, Inc. ("AMSG") or the shareholders of UWS or AMSG. Each Venturer agrees to notify the other Loan DocumentsVenturer promptly in the event such Venturer determines that it is unlikely that any condition set forth in this Section 4.2 will not be satisfied prior to Closing.
Appears in 1 contract
Sources: Joint Venture and Shareholders Agreement (United Wisconsin Services Inc)
Conditions Precedent to Closing. SECTION 7.1. Conditions to the Company's Obligations. The Closing and the initial disbursement obligations of the Loans Company hereunder required to be performed at the Closing shall be subject subject, at its election, to the satisfaction or waiver (which waiver, if so requested by Proha, shall be made in writing), at or prior to the Closing, of the following conditions precedentconditions:
(a) The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties of Proha contained herein in this Agreement shall be true and correct in all material respects on and as of the Closing Date, as if such representation or warranty was made as of the Closing, except to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such specified date.
(b) Proha 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 be performed and complied with by Proha at or prior to the Closing Date.
(c) All material governmental and regulatory approvals and clearances and all third-party consents necessary for the consummation of the transactions contemplated by the Documents to occur on the Closing Date shall have been obtained and shall be in full force and effect, the Company shall reasonably be 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.
(d) All legal matters incident Proha shall have delivered to the Loans Company a certificate, executed by Proha or on its behalf by a duly authorized representative, dated as of the Closing Date, certifying that each of the conditions specified in this Section 7.1 has been satisfied with respect to Proha.
(e) All Documents, instruments, agreements and arrangements relating to the transactions contemplated by the Documents shall be reasonably satisfactory to the Administrative AgentCompany, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed executed and delivered by the parties thereto be in each office where necessary full force and effect and no party to perfect the security interest any of the Administrative Agent, for foregoing (other than the ratable benefit of the Lenders, in the Collateral, termination statements Company) shall have been filed with respect to breached any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowersits material obligations thereunder.
(f) 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 the Company, 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 Artemis Employee Benefit Plans) pending or threatened against the Artemis Entities which could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(g) The Borrowers Company shall have received stock certificates (to the extent certificated) representing the Exchanged Shares as set forth hereunder.
(h) Proha shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery certificates of the Loan Documentsappropriate public officials, if available, to the effect that each of Proha and each Artemis Entity is a validly existing corporation in good standing (2) certified copies to the extent that the concept of good standing is recognized under the laws of the articles or certificate relevant jurisdiction of incorporation, bylaws, articles or certificate organization) in its jurisdiction of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 five (5) days prior to the Closing Date, from the appropriate state official of any state in which the Borrowers or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) Proha shall have delivered to the Company a certificate of the Secretary of its Board of Directors (i) certifying that a true and correct copy of the Charter and Bylaws of the Artemis Entities and all resolutions of the Board of Directors of Proha authorizing the execution and delivery of this Agreement and each Document to which Proha is a party and authorizing the performance by Proha of the transactions contemplated hereby and thereby is attached thereto and (ii) containing the incumbency and specimen signature of each of the officers of Proha.
(j) Proha's stockholders shall have elected Proha Nominees and the Other Nominees to the Board of Directors of Proha, subject to the completion of the transactions contemplated herein.
(k) The Administrative Agent Company shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against Stockholder Approval.
(l) The reorganization of the Collateral other than those created or permitted by this Agreement or the other Loan DocumentsArtemis Entities decribed in Section 6.9 shall have occurred.
Appears in 1 contract
Conditions Precedent to Closing. The Closing and the initial disbursement obligations of the Loans Parties under this Agreement shall be and are subject to fulfillment, prior to the Effective Time of this Agreement, of each of the following conditions precedentconditions:
(a) The Loan Documents shall have been appropriately completed, duly executed by That each of the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties of the Parties contained herein shall be true and correct in all material respects at the time of the Closing Date.date as if such representations and warranties were made at such time except for changes permitted or contemplated by this Agreement;
(b) That the Parties shall have performed or complied with all agreements, terms and conditions required by this Agreement to be performed or complied with by them prior to or at the time of the Closing;
(c) TRBT shall have received, and delivered documentation of, the approvals required, if any, from the Ministry of Commerce of the People’s Republic of China, the China Securities Regulatory Commission, the State Administration of Foreign Exchange, or any other Chinese governmental agency regulating the ownership of business operations in China by non-Chinese nationals and/or the ownership of offshore companies doing business in China by Chinese nationals;
(d) All legal matters incident The Company shall have received all of the regulatory, shareholder and other third party consents, permits, approvals and authorizations necessary to consummate the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.transactions contemplated by this Agreement;
(e) Financing statements in form and substance satisfactory to the Administrative Agent The Company shall have been properly filed in each office where necessary to perfect the security interest complied with Rule 14(f)(1) of the Administrative AgentExchange Act, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowersif required.
(f) The Borrowers Company shall have delivered filed all quarterly and annual reports up to and including the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken quarterly report due by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan DocumentsNovember 14, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency 2007 for the officers third quarter of 2007. TRBT has agreed to pay the Borrowers and reasonable costs associated with filing the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel 10Q for the Administrative Agent reasonably may requestthird quarter of 2007.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) Company will effectuate an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables approximate 100 for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements 1 reverse split of the Company for Common Stocks of the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect Company prior to the Transaction and time of closing (the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto“Roll Back”).
(h) The Administrative Agent That the Company shall have received a field examination report settled, paid or otherwise resolved the Convertible Notes payable in the principal amount of the Collateral in form and substance acceptable to it.$200,000 plus accrued interest;
(i) The Administrative Agent No litigation shall have been instituted on or before the time of the Closing by any person, the result of which did or could prevent or make illegal the consummation of the transaction contemplated by this Agreement, or which had or could have a material adverse effect on the business of any of the Parties.
(j) TRBT and the Shareholders shall have received financing statementall of the regulatory, judgment shareholder and tax lien searches reflecting that there are no Liens outstanding against other third party consents, permits, approvals and authorizations necessary to consummate the Collateral other than those created or permitted transactions contemplated by this Agreement or Agreement; and
(k) The Shareholders shall have delivered to the other Loan DocumentsCompany the share certificates and duly executed stock powers from the Shareholders transferring the TRBT Shares to the Company.
Appears in 1 contract
Sources: Share Exchange Agreement (Teeka Tan Products, Inc.)
Conditions Precedent to Closing. The Closing and the initial disbursement obligations of the Loans shall be Banks to extend credit hereunder is subject to the satisfaction of the following conditions precedentconditions:
(a) The Loan Documents the Administrative Agent shall have been appropriately completedreceived executed counterparts of this Agreement which, duly executed by when taken together, bear the signatures of each of the parties thereto, recorded where necessary and delivered to the Administrative Agent.hereto;
(b) No Default or Event the Administrative Agent shall have received on behalf of the Banks all such evidence as it shall reasonably have requested as to the corporate power and authority of the Company to enter into and borrow under this Agreement and to perform its obligations hereunder;
(c) the Administrative Agent shall have received on behalf of the Banks (i) from Counsel and Special FCC Counsel for the Company, their opinions, dated the date hereof, substantially in the forms attached hereto as Exhibit 7.01(b)(i) and (ii) from Counsel for the Administrative Agent, its opinion, dated the date hereof, substantially in the form attached hereto as Exhibit 7.01(b)(ii);
(d) the Administrative Agent shall have received on behalf of the Banks an Officer's Certificate, dated the date hereof, substantially in the form attached hereto as Exhibit 7.01(c);
(e) no Default shall have occurred and be continuing.continuing or shall occur after giving effect to the Company's execution of this Agreement;
(cf) All after giving effect to the Company's execution of this Agreement, the representations and warranties contained herein made by the Company in Article VI (except those that expressly relate to a prior date) shall be true and correct in all material respects at on and as of the Closing Date.date hereof;
(dg) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary received all interest, fees and other amounts accrued under the Existing Credit Agreement on or prior to perfect the security interest date hereof (whether or not at the time due and payable), including to the extent invoiced, reimbursement or payment of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect all out-of-pocket expenses required to any other financing statements covering all be reimbursed or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.hereunder; and
(h) The Administrative Agent No Loans shall have received a field examination report be outstanding under the Existing Agreement as of the Collateral in form and substance acceptable to itdate hereof.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Cox Communications Inc /De/)
Conditions Precedent to Closing. The agreement of Lender to enter into this Agreement on the Closing Date and to fund the initial disbursement of the Loans shall be Term Loan is subject to the satisfaction, or waiver by Lender, immediately prior to or concurrently with the making of such Term Loan of the following conditions precedent:
(a) The the Lender shall have received this Agreement and each other Loan Document duly executed and delivered by an Authorized Officer of each Borrower Party to which such Borrower Party is a party, other than such Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and required to be delivered to the Administrative Agent.Lender pursuant to Section 3.2;
(b) No Default or Event of Default the Lender shall have occurred received a copy of the resolutions in form and be continuing.substance reasonably satisfactory to the Lender, of the board of directors (or other managing body) of the Parent and the Borrower authorizing (i) the execution, delivery and performance of this Agreement, the Note, the Pledge and Security Agreement and the other Loan Documents, and (ii) the granting by each Borrower Party of the security interests in and liens upon the Collateral certified by an Authorized Officer thereof as of the Closing Date; and, such certificate shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate;
(c) All the Lender shall have received a certificate of an Authorized Officer of the Parent and the Borrower, dated the Closing Date, as to the incumbency and signature of the officers of each Borrower Party executing this Agreement, the Loan Documents, any certificate or other documents to be delivered by it pursuant hereto, together with evidence of the incumbency of such Secretary or Assistant Secretary;
(d) no litigation, investigation or proceeding before or by any arbitrator or Governmental Body shall be continuing that is not disclosed in the most recent SEC filing of the Company, or to the knowledge of any of the Borrower Parties, threatened against any Borrower Party or against the respective officers or directors of any Borrower Party (A) in connection with this Agreement or the Loan Documents or any of the transactions contemplated thereby or (B) which, if determined adversely with respect to any such Borrower Party, could, in the reasonable opinion of Lender, be expected to have a Material Adverse Effect; and (ii) no injunction, writ, restraining order or other order of any nature materially adverse to any Borrower Party or the conduct of its business shall have been issued by any Governmental Body;
(e) since the date of the most recent SEC filing through the date of this Agreement, there shall not have occurred a Material Adverse Effect;
(f) no representations made by any Borrower Party under this Agreement or the Loan Documents or written information (other than projections or estimates or third party data) supplied by any Borrower Party to the Lender (taken as a whole and after giving effect to all supplements) shall have been proven to be inaccurate or misleading in any material respect;
(g) the Lender shall have received a closing certificate signed by an officer of the Borrower dated as of the date hereof, stating that (i) all representations and warranties contained herein shall be set forth in this Agreement and the Loan Documents are true and correct in all material respects at on and as of such date (provided that any such representations and warranties that by their express terms are made as of a specific date shall be true and correct as of such specific date), (ii) each Borrower Party is on such date in compliance with all the terms and provisions set forth in this Agreement and the Loan Documents, and (iii) on such date no Event of Default has occurred or is continuing;
(h) no injunction, writ, restraining order or other order of any nature materially adverse to any of the Borrower Parties or the subject matter of the Pledge and Security Agreement shall have been issued by any Governmental Body; and
(i) Lender shall have received such other documents or certificates, and completion of such other matters, as Lender may reasonably request to be delivered or completed on the Closing Date.
(d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 1 contract
Sources: Secured Loan Agreement (ComSovereign Holding Corp.)
Conditions Precedent to Closing. The Closing and obligations of Buyer pursuant to this Agreement shall, at the initial disbursement option of the Loans shall Buyer, be subject to the following conditions precedent:
(a) The Loan Documents shall have been appropriately completed9.1 All of the representations, duly executed by the parties thereto, recorded where necessary warranties and delivered to the Administrative Agent.
(b) No Default or Event agreements of Default shall have occurred and be continuing.
(c) All representations and warranties contained herein Seller set forth in this Agreement shall be true and correct in all material respects at as of the Closing Datedate hereof, and Seller shall not have on or prior to closing, failed to meet, comply with or perform in any material respect any conditions or agreements on Seller's part as required by the terms of this Agreement.
(d) All legal matters incident to the Loans 9.2 There shall be reasonably satisfactory to no change in the Administrative Agentmatters reflected in the Title Report, and there shall not exist any encumbrance or title defect affecting the Borrowers agree Property not described in the Title Report except for the Permitted Exceptions or matters to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may requestbe satisfied at closing.
9.3 Effective as of closing, the management agreement affecting the Property shall be terminated by Seller and any and all termination fees incurred as a result thereof shall be the sole obligation of Seller.
9.4 Seller shall have operated the Property from and after the date hereof in substantially the same manner as prior thereto.
9.5 On the Close of Escrow, neither Seller nor any Major Tenant (eas hereinafter defined) Financing statements in form shall have filed a petition under any section of the Bankruptcy Code, as amended, or under any similar law or statute of the United States or any State thereof, nor shall Seller or any Major Tenant have been adjudged bankrupt or insolvent, nor shall any rearrangement of its debts have been requested by Seller or any Major Tenant; neither Seller nor any Major Tenant shall be insolvent and substance satisfactory to the Administrative Agent no receiver or trustee shall have been properly filed in each office where necessary to perfect the security interest appointed for Seller or any of Seller's assets, or for any Major Tenant or any of the Administrative Agentassets of a Major Tenant. For purposes hereof, for the ratable benefit of the Lendersterm "Major Tenant" shall mean HEB, in the CollateralBeall's, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the CollateralTuesday Morning, except with respect to financing statements perfecting Liens permitted by this AgreementChristian Faith Center, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents▇▇▇▇▇▇▇▇▇ Co., (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.Taco Cabana,
Appears in 1 contract
Conditions Precedent to Closing. The Closing and Credit Facility Lenders shall not be obligated to make any Loan (including the initial disbursement issuance of the Loans shall be subject any Letter of Credit), or to take, fulfill, or perform any other action under this Agreement, until the following conditions precedenthave been satisfied to their reasonable satisfaction or waived in writing by each such lender:
4.1.1 Administrative Agent shall have received:
(a) The Loan Documents shall have been appropriately completedoriginals of the documents set forth on Schedule 4.1 (Schedule of Documents), each duly executed by the parties appropriate parties, together with such other assurances, certificates, documents or consents related to 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, recorded where necessary bylaws and delivered 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 Date;
(f) a pro forma Borrowing Base Certificate as of the 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.
(b4.1.6 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 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 to Borrower, that constitutes a Material Adverse Effect as of the Closing Date.
4.1.12 Borrower shall be in compliance with all the terms and provisions of the Loan Documents, and no Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties contained herein . 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 be true and correct in all material respects at the Closing Date.
(d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agentcontrol, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent Borrower shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by rights under this Agreement or the any other Loan DocumentsDocument until each of the conditions of this Section 4.1 has been complied with to Administrative Agent’s and Lenders’ satisfaction or specifically waived in a writing by Lenders.
Appears in 1 contract
Conditions Precedent to Closing. The Transferee's Conditions Precedent
4.1 All of the obligations of the Transferee under this Agreement are further subject to at least the following conditions for the exclusive benefit of the Transferee fulfilled in all material aspects in the reasonable opinion of the Transferee or to be waived by the Transferee as soon as possible but, unless specifically indicated as otherwise, not later than five calendar days prior to the Closing Date:
(a) the Company and the initial disbursement Transferors shall have complied with all warranties, representations, covenants and agreements herein agreed to be performed or caused to be performed by the Company and the Transferors on or before the Closing Date;
(b) the Company and the Transferors shall have obtained all authorizations, approvals and other actions by, and have made all filings with, any Regulatory Authority (and, in particular, the Chinese government) from whom any such authorization, approval or other action is required to be obtained or to be made in connection with the transactions contemplated herein, and all such authorizations, approvals and other actions are in full force and effect and all such filings have been accepted and the Company and the Transferors are in compliance with, and have not committed any breach of, any securities laws, regulations or policies of any securities regulatory authority to which the Company or the Transferors may be subject;
(c) the Company's Audited Financial Statements will be subject to the prior review and approval of the Loans Transferee's auditors so as to ensure that they are true and correct in every respect and present fairly the financial position of the Company as at its most recently completed financial period and the results of its operations for the period then ended in accordance with generally accepted accounting principles in the United States on a basis consistently applied;
(d) all matters which, in the opinion of counsel for the Transferee, are material in connection with the transactions contemplated by this Agreement shall be subject to the following conditions precedent:
(a) The Loan Documents shall have been appropriately completedfavourable opinion of such counsel, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred all relevant records and be continuing.
(c) All representations and warranties contained herein information shall be true and correct in all material respects at the Closing Date.
(d) All legal matters incident supplied to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.counsel for that purpose;
(e) Financing statements in form and substance satisfactory no material loss or destruction of or damage to the Administrative Agent Company, any of its assets, any of the Company's Business or the Equity Interests shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.occurred;
(f) The Borrowers no action or proceeding at law or in equity shall have delivered 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 Equity Interests contemplated by this Agreement or the right of the Company or the Transferors to dispose of any of the Equity Interests; or
(ii) the right of the Company to conduct its operations and carry on, in the normal course, its Company's Business and operations as it has carried on in the past;
(g) the delivery to the Administrative Agent (1) certified copies of evidence Transferee by the Company and the Transferors, on a confidential basis, of all corporate remaining material documentation and company actions taken by information and including, without limitation, an updated Company Disclosure Schedule, and:
(i) a copy of all material contracts, agreements, reports and information of any nature respecting the Borrowers Company, its assets and the Holding Company's Business; and
(ii) details of any lawsuits, claims or potential claims relating to either the Company, its assets, the Company's Business or the Equity Interests of which either the Company to authorize the execution and delivery or any of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers Transferors is aware and the Holding Transferee is unaware;
(h) the Company and the Transferors will cause the Company, (3) for a certificate period of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 at least 90 calendar days prior to the Closing Date, from during normal business hours, to:
(i) make available for inspection by the appropriate state official counsel, auditors and representatives of any state the Transferee, 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 Transferee, provided such persons do not unduly interfere in which the Borrowers operations of the Company;
(ii) authorize and permit such persons at the risk and the sole cost of the Transferee, and only if such persons do not unduly interfere in the operations of the Company, to attend at all of its places of business and operations to observe the conduct of its Company's Business and operations, inspect its assets and make physical counts of its inventories, shipments and deliveries; and
(iii) require the Company's management personnel to respond to all reasonable inquiries concerning the Company's Business, its assets or the Holding conduct of its business relating to its liabilities and obligations;
(i) the delivery to the Transferee by the Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or Transferors of an opinion of the counsel for the Administrative Agent Company and the Transferors, in a form satisfactory to the Transferee's counsel, dated as at the Closing Date, 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 in good standing with respect to all statutory filings required by the applicable corporate laws;
(ii) the Company has the power, authority and capacity to own and use all of its assets and to carry on its Company's Business as presently conducted by it;
(iii) the Company, as the legal and beneficial owner of all of its assets, holds all of the assets free and clear of all liens, charges and claims of others;
(iv) the registered capital of the Company is as warranted by the Company and the Transferors, and, at Closing, all of registered capital will be duly registered, fully paid and non-assessable;
(v) all necessary steps and corporate proceedings have been taken by the Company and the Transferors to permit the Equity Interests to be duly and validly transferred to and registered in the name of the Transferee as at the Closing Date;
(vi) based on actual knowledge and belief, such counsel knows of no claims, judgments, actions, suits, litigation, proceedings or investigations, actual, pending or threatened, against either the Company or the Transferors which might materially affect either the Company, its assets or the Company's Business or which could result in any material liability to either of the Company, its assets or the Company's Business; and
(vii) as to all other legal matters of a like nature pertaining to the Transferors, the Company, its assets, the Company's Business and to the transactions contemplated hereby as the Transferee or the Transferee's counsel may reasonably may requestrequire; and
(j) the completion by the Transferee and by the Transferee's professional advisors of a thorough due diligence and operations review of both the Company's Business and the operations of the Company together with the transferability of the Equity Interests as contemplated by this Agreement.
4.2 All of the obligations of the Company and the Transferors under this Agreement are further subject to at least the following conditions for the exclusive benefit of the Company and the Transferors fulfilled in all material aspects in the reasonable opinion of the Company and the Transferors or to be waived by the Company and the Transferors as soon as possible but, unless specifically indicated as otherwise, not later than five calendar days prior to the Closing Date:
(a) the Transferee shall have complied with all warranties, representations, covenants and agreements herein agreed to be performed or caused to be performed by the Transferee on or before the Closing Date;
(b) all matters which, in the opinion of counsel for the Company and the Transferors, are material in connection with the transactions contemplated by this Agreement shall be subject to the favourable opinion of such counsel, and all relevant records and information shall be supplied to such counsel for that purpose;
(c) no material loss or destruction of or damage to the Transferee shall have occurred;
(d) the Transferee will, for a period of at least 90 calendar days prior to the Closing Date, during normal business hours:
(i) make available for inspection by the solicitors, auditors and representatives of the Company and the Transferors, at such location as is appropriate, all of the Transferee'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 Company and the Transferors, provided such persons do not unduly interfere in the operations of the Transferee;
(ii) authorize and permit such persons at the risk and the sole cost of the Company and the Transferors, and only if such persons do not unduly interfere in the operations of the Transferee, to attend at all of its places of business and operations to observe the conduct of its business and operations, inspect its properties and assets and make physical counts of its inventories, shipments and deliveries; and
(iii) require the Transferee's management personnel to respond to all reasonable inquiries concerning the Transferee's business assets or the conduct of its business relating to its liabilities and obligations; and
(e) the completion by the Company and the Transferors and by the Company's and the Transferors' professional advisors, of a thorough due diligence and operations review of both the business and operations of the Transferee.
4.3 The Closing of this Agreement and the rights, obligations and duties of the Parties arising upon and prior to the Closing Date shall also be conditional upon and subject to:
(a) the specific ratification of the terms and conditions of this Agreement by each of the Board of Directors of the Transferee, the Company and each of the Transferors, if applicable, within 21 business days of the due and complete execution of this Agreement by each of the Parties hereto (collectively, the "Ratification");
(b) the completion by each of the Transferee and the Company of an initial due diligence and operations review of the other Party's respective business and operations within 90 calendar days of the prior satisfaction of the Ratification (the "Initial Due Diligence";
(c) the amendment to and ratification by the Transferee of the Articles of Association of the Company;
(d) the receipt by the Transferee of a written Valuation respecting the underlying Valuation Value of the Company, and which Valuation will be prepared by reference, in part, to the Company's Audited Financial Statements; the results of such Valuation and the effect on the resulting number of Shares forming the Transfer Price hereunder being acceptable, in writing, by the Parties hereto;
(e) if required under applicable corporate and securities laws, the receipt of all necessary approvals from any Regulatory Authority (and, in particular, the Chinese government) having jurisdiction over the transactions contemplated by this Agreement on or before November 30, 2006;
(f) the attainment by the Company of each of the Escrow Milestones subject, at all times, to the sole and absolute satisfaction of the Transferee, acting reasonably, on or before June 30, 2007;
(g) The Administrative Agent shall have received (l) if required under applicable corporate and securities laws, shareholders of the Transferee passing an ordinary resolution or, where required, a Borrowing Base Certificatespecial resolution, (2) an Aging Reportapproving the terms and conditions of this Agreement and all of the transactions contemplated hereby, (3) a contract status and backlog report relating the Transferee sending all required notice to Eligible Receivables for the period ended on December 31Transferee's shareholders in connection therewith, 2006or, in form the alternative and substance satisfactory if allowable in accordance with applicable corporate and securities laws, shareholders of the Transferee holding over 50% of the issued shares of the Transferee providing written consent resolutions evidencing their approval to the Lender, terms and conditions of this Agreement and all of the transactions contemplated hereby together with certification of any required notice to all shareholders of the Transferee of such written consent resolutions; and
(4h) the financial statements Board of Directors of the Company for Transferee and/or the period ended on December 31shareholders of the Transferee, 2006if required, and (5) a pro forma Covenant Compliance Certificate, giving effect approving of the within payment of the Cash Payments together with the Share Issuances by the Transferee to the Transaction order and direction of the Transferors of all of the referenced Cash Payments and Shares in accordance with sections 1.2 and 1.3 hereinabove, together with such other matters as may be agreed to as between the Parties hereto prior the completion of the transactions contemplated by this Agreement.
4.4 The Company and the initial disbursement of Transferors will also deliver, or cause to be delivered to the Loans, and certifying that no Default or Event of Default exists as of Transferee within 90 calendar days prior to the Closing Date, nor would an independent assessment report and business plan and/or valuation respecting the Company's Business and assets together with such corporate and asset status reports and/or opinions respecting the Company's Business and assets, as may be required by either the Transferee or any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received Regulatory Authority, prepared, at a field examination report minimum, in accordance with the applicable rules and reporting guidelines of the Collateral in form and substance acceptable to itappropriate Regulatory Authorities.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 1 contract
Conditions Precedent to Closing. The Closing and 4.01 Seller's obligation under this Agreement to consummate the initial disbursement of the Loans shall be transaction contemplated herein is subject to the fulfillment of each of the following conditions precedent:conditions.
(a) The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties of Purchasers contained herein shall be true true, accurate and correct in all material respects as of the Closing Date, except to the extent they expressly relate only to an earlier date.
(b) All consents and approvals of governmental authorities and parties to agreements to which any Purchaser is a party or by which any asset owned by a Purchaser is bound that are required with respect to the consummation of the transactions contemplated by this Agreement shall have been obtained and copies thereof shall have been delivered to Seller at or prior to the Closing.
(c) On or prior to the Closing Date, (i) no Purchaser shall 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) no Purchaser shall have admitted in writing an inability to pay his debts as they mature, (iii) no Purchaser shall have made a general assignment for the benefit of creditors, (iv) no Purchaser shall have been adjudicated a bankrupt or insolvent, or had a petition for reorganization granted with respect to Purchaser, (v) no Purchaser shall 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 been dismissed, canceled or terminated prior to the Closing Date.
(d) All legal matters incident to the Loans This Agreement shall be reasonably satisfactory to the Administrative Agentnot have been terminated, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may requestif expressly permitted herein.
(e) Financing statements The closing of title (the "Group A Closing") under and pursuant to that certain Purchase and Sale Agreement (the "Group A Agreement") dated April 28, 2000, by and among ▇▇▇▇▇▇ Park Associates, LLC, North Shore Triangle, LLC, Philips Yonkers, LLC, ▇▇▇▇▇▇▇ ▇▇▇▇▇, LLC, Philips Shopping Center Fund, L.P. and Philips ▇▇▇▇ ▇▇▇▇ Associates, L.P., collectively as seller, and Kimco Income Operating Partnership, L.P., as purchaser, for each Property or Ground Lease (each as defined in form and substance satisfactory to the Administrative Agent Group A Agreement) shall have occurred or shall have been properly filed in each office where necessary excluded or postponed pursuant to perfect the security interest terms of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Group A Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers All of the material conditions to and under the Group B Agreement required to have been satisfied as of immediately before the sale described in Section 1 above shall have been satisfied or waived. For the purposes of this Agreement, the "Group B Agreement" shall mean that certain Asset Contribution, Purchase and Sale Agreement dated April 28, 2000 (as amended), by and among Operating Partnership, Philips International Realty Corp. ("Philips Corp."), Certain Affiliated Parties Signatory Thereto, KIR Acquisition, LLC, and Kimco Income Operating Partnership, L.P.
4.02 Each Purchaser's obligation under this Agreement to consummate the transaction contemplated herein is subject to the fulfillment of each of the following conditions.
(a) The representations and warranties of Seller contained herein shall be true, accurate and correct in all material respects as of the Closing Date, except to the extent they relate only to an earlier date.
(b) All consents and approvals of governmental authorities and parties to agreements to which Seller is a party or by which any asset of Seller is bound that are required with respect to the consummation of the transactions contemplated by this Agreement shall have been obtained and copies thereof shall have been delivered to such Purchaser at or prior to the Administrative Agent Closing.
(1c) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company On or prior to authorize the execution and delivery of the Loan DocumentsClosing Date, (2i) certified copies Seller 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 articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days same shall have been discharged prior to the Closing Date, from the appropriate state official of any state in which the Borrowers and no such receiver, liquidator or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent trustee shall have received (l) a Borrowing Base Certificateotherwise been appointed, (2) an Aging Report, (3) a contract status and backlog report relating unless same shall have been discharged prior to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would (ii) Seller shall not have admitted in writing an inability to pay its debts as they mature, (iii) Seller shall not have made a general assignment for the benefit of creditors, (iv) Seller shall not have been adjudicated a bankrupt or insolvent, or had a petition for reorganization granted with respect to itself, (v) Seller shall not have filed a voluntary petition seeking reorganization or an arrangement with creditors or taken advantage of any Default bankruptcy, reorganization, insolvency, readjustment or Event debt, dissolution or liquidation law or statute, or filed an answer admitting the material allegations of Default occur after giving effect theretoa petition filed against it in any proceedings under any such law or statute, or had any petition filed against it in any proceeding under any of such law or statute unless the same shall have been dismissed, canceled or terminated prior to the Closing Date.
(hd) The Administrative Agent This Agreement shall not have received a field examination report of the Collateral in form and substance acceptable to itbeen terminated, if expressly permitted herein.
(ie) The Administrative Agent Group A Closing under and pursuant to the Group A Agreement for each Property or Ground Lease (each as defined in the Group A Agreement) shall have received financing statement, judgment occurred or shall have been excluded or postponed pursuant to the terms of the Group A Agreement.
(f) All of the material conditions to and tax lien searches reflecting that there are no Liens outstanding against under the Collateral other than those created Group B Agreement required to have been satisfied as of immediately before the sale described in Section 1 above shall have been satisfied or permitted by this Agreement or the other Loan Documentswaived.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Philips International Realty Corp)
Conditions Precedent to Closing. 14.1 The Closing and obligation of Purchaser to purchase the initial disbursement Project pursuant to the provisions of the Loans this Agreement shall be subject to the following conditions precedent:(all or any of which may be waived in writing, in whole or in part, by Purchaser):
(a) The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties contained herein of Seller in this Agreement shall be true and correct and the covenants and agreements of Seller contained herein shall have been complied with as of the date of Closing;
(b) Seller shall deliver the documents described in all Articles 5 and 7 of this Agreement;
(c) There shall have been no material respects at changes in the Closing Date.zoning laws and regulations applicable to the Project;
(d) All legal matters incident Subject to the Loans terms of Section 7.1(j), Seller shall have obtained an estoppel certificate from tenants each of occupying the Property's leased space under the Tenant Leases, to be reasonably satisfactory to substantially in the Administrative Agentform annexed hereto as Exhibit M, setting forth that (i) there are no defaults thereunder by landlord or tenant, (ii) their respective leases are valid, unmodified and in full force and effect, (iii) that all rent and additional rent has been paid through the Borrowers agree to execute month of Closing and deliver to the Administrative Agent (iv) such additional documents and certificates relating to the Loans other matters as the Administrative Agent reasonably may request.are set forth in Exhibit M annexed hereto;
(e) Financing statements in form and substance satisfactory Seller shall deliver title to the Administrative Agent Property as provided in Article 5, and Purchaser shall have been properly filed in each office where necessary to perfect the security interest obtained a Title Policy and Survey corresponding thereto and confirming same.
14.2 If any of the Administrative Agent, for the ratable benefit conditions precedent to closing set forth herein or any other covenant or closing obligation of the Lenders, in the Collateral, termination statements Seller shall not have been filed complied with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent then, in such event, Purchaser shall have received a field examination report of the Collateral right, in form and substance acceptable addition to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral any other than those created rights or permitted by remedies available to Purchaser under this Agreement or in equity or at law, to rescind this transaction in which event the parties shall be relieved and released from any further obligations to each other Loan Documentsor Purchaser may close the transaction in accordance with its terms.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Universal Health Realty Income Trust)
Conditions Precedent to Closing. The Closing and the initial disbursement of the Loans shall be subject to the following conditions precedent:
(a) The Loan Documents obligations of IOI and the SELLERS under this Agreement shall have been appropriately completedbe and are subject to fulfillment, duly executed by prior to or at the parties theretoClosing, recorded where necessary and delivered to of each of the Administrative Agent.following conditions:
(bi) No Default or Event of Default shall have occurred That APEC's and be continuing.
(c) All MANAGEMENT's 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 MANAGEMENT will deliver an executed certification confirming the foregoing:
(ii) That APEC and MANAGEMENT shall have performed or complied with all agreements, terms and conditions required by this Agreement to be performed or complied with by them prior to or at the time of Closing;
(iii) That APEC's directors and shareholders, by proper and sufficient vote taken either by consent or at a meeting duly and properly called and held, shall have properly approved all of the matters required to be approved by APEC's directors and shareholders, respectively;
(iv) That APEC's Board of Directors, by proper and sufficient vote, shall have approved this Agreement and the transactions contemplated hereby; approved the change of APEC's corporate name to a name selected by IOI; approved the resignation of all of APEC's current directors and the election of up to three designees of IOI to serve as directors in all material respects place of APEC's current directors; and will have approved such other changes as are consistent with this Agreement and approved by IOI and APEC; and
(b) The obligation of APEC and MANAGEMENT under this Agreement shall be and are subject to fulfillment, prior to or at the Closing Date.
(d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in of each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.following conditions :
(i) The Administrative Agent That IOI'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 IOI and the IOI PRINCIPALS shall deliver an executed certification confirming the foregoing;
(ii) That IOI and IOI PRINCIPALS shall have received financing statementperformed or complied with all agreements, judgment terms and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted conditions required by this Agreement to be performed or complied with by them prior to or at the other Loan Documents.time of Closing; and
(iii) that IOI's officers will have signed non-compete clauses in the form attached hereto as Exhibit J.
(iv) That IOI's officers shall provide any existing employment agreements which are attached hereto as Exhibit H.
Appears in 1 contract
Conditions Precedent to Closing. i. The Closing and the initial disbursement obligation of the Loans Parties to consummate the transactions contemplated herein shall be subject to the following conditions precedenthaving been met or waived by both Parties:
(aa. The governmental approvals set forth in Schedule 4.2(i)(a) The Loan Documents shall have been appropriately completed, duly executed obtained by the Purchaser and any waiting periods under Applicable Laws have expired or been terminated by the competent authorities.
b. There are no judgments or Orders outstanding which enjoin the transactions and no law suits have been filed that threaten to enjoin the transactions.
ii. The obligation of the Purchaser to consummate the transactions contemplated herein shall be subject to the following conditions having been met or waived by the Purchaser:
a. All consents of third parties thereto, recorded where necessary and under the Change of Control Contracts set forth in Schedule 4.2(ii)(a) have been obtained.
b. The Seller has delivered to the Administrative Agent.Purchaser the combined balance sheet, income statement, comprehensive income statement, cash flow statement and statement of changes in equity of the Business and notes thereto as of and for the 12 months ended December 31, 2010 (without comparable figures for 2009) prepared in accordance with IFRS and accompanied by an unqualified audit report of PwC.
(bc. No Material Adverse Change has occurred after this Agreement has been signed. Each Party shall file the necessary applications or other documents required to be filed by such Party and undertake any further steps to obtain the governmental approvals listed in Schedule 4.2(i)(a) No Default as soon as practicable after the signing of this Agreement. The Purchaser shall pay the fees associated with such filings. Each party shall promptly inform the other Party on all the steps such Party undertakes with regard to these procedures and on any Orders or Event of Default other relevant communications issued by the competent authorities. Each Party shall have occurred support the other Party by providing all the information about itself and be continuing.
(c) All representations its Associated Companies that is necessary for such applications and warranties contained herein procedures. Should a competent authority require undertakings or remedies from the Parties as a condition to granting approval, the Parties shall be true and correct in all material respects at the Closing Date.
(d) All legal matters incident use their best endeavors to meet such requirements to the Loans shall be reasonably satisfactory extent they do not materially change the transactions contemplated herein. Notwithstanding the foregoing or anything in this Agreement to the Administrative Agentcontrary, and in no event shall the Borrowers Purchaser or any of its Associated Companies be required to agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest sell, divest, dispose of or hold separate any assets or businesses of the Administrative Agent, for the ratable benefit Purchaser or any of its Associated Companies or of any of the Lenders, in Companies unless the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion Parties agree on compensation by Seller for such actions. Immediately after the signing of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, the Seller shall contact the counter parties to the Change of Control Contracts in order to obtain the consents or provide the notices required by such contracts and all taxes use its best efforts to obtain such consents. The Purchaser shall support the Seller in its endeavors and fees in particular participate in meetings with respect to the counter parties concerned if this is requested by such recording and filing shall have been paid counter party or by the Borrowers.
(f) The Borrowers Seller and provide the information reasonably requested by these counter parties or by the Seller on the Purchaser. Immediately after the signing of this Agreement the Seller shall have delivered finalize the notes to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the combined financial statements of the Company Business for 2010 and shall cause PwC to audit pursuant to the engagement letter attached hereto as Schedule 4.2(iii) such combined financial statements as described in art. 4.2(ii)(b) of this Agreement in accordance with U.S. Generally Accepted Audited Standards in form suitable for filing with the U.S. Securities and Exchange Commission so that such audited financial statements can be delivered to the Purchaser as soon as possible. The Seller shall cooperate with PwC in all reasonable respects to allow PwC to conclude such audit as soon as possible but shall not assume any responsibility for compliance with U.S. Generally Accepted Audited Standards or the requirements of the U.S. Securities and Exchange Commission. The content of such audited financial statements is, however, irrelevant for the period ended on December 31condition precedent, 2006i.e., and (5the Parties shall close the transaction even if the audited financial statements as described in art. 4.2(ii)(b) a pro forma Covenant Compliance Certificate, giving effect should deviate from the 2010 Annual Financial Statement provided that all the other conditions precedent listed above have been satisfied or waived by each Party entitled to waive such condition. Subject to the Transaction other terms of this Agreement, the Seller and the initial disbursement Purchaser shall contest any law suits and appeal any Orders and judgments that impede the transactions pursuant to art. 4.2(i)(b). The cost of such lawsuit shall be borne by the LoansParty whose shareholders or creditors have sued. Should the conditions under art. 4.2(i) not be met or waived by the Parties by October 6, and certifying that no Default or Event of Default exists as of 2012 (the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h“Deadline”) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by each Party may rescind this Agreement without any financial consequence unless the condition concerned has not been met due to a violation of this Agreement by a Party. Should the conditions under art. 4.2(ii) not be met or waived by the other Loan DocumentsPurchaser by the Deadline the Purchaser may rescind this Agreement without any financial consequence unless the condition concerned has not been met due to a violation of this Agreement by the Purchaser. Notwithstanding the foregoing, the second paragraph of art. 11.1, art. 11.7 and art. 12 shall survive termination of this Agreement.
Appears in 1 contract
Conditions Precedent to Closing. The Closing 4.1 Notwithstanding any other provisions of this Agreement to the contrary, all of Purchaser’s duties and the initial disbursement of the Loans obligations under this Agreement, including, but not limited to, its obligation to close, shall be conditioned upon and subject to the complete satisfaction of the following conditions precedent, each of which condition is for the sole benefit of Purchaser and any of which conditions may be waived by Purchaser at any time at Purchaser’s sole election:
(a) The Loan Documents shall have been appropriately completed, duly executed completion of the matters set forth in Sections 2.1 and 2.3 herein or the expiration of the Feasibility Study Period and the exercise by Purchaser of the parties thereto, recorded where necessary and delivered to the Administrative Agent.Option;
(b) No Default each and every warranty and representation made by Seller or Event BDA in this Agreement shall be true, correct and accurate in all material respects as of Default shall have occurred the date hereof and be continuing.as of the Closing Date;
(c) All representations Seller and warranties BDA shall timely perform each and every duty, condition, obligation, covenant, and agreement of Seller and BDA contained in this Agreement, including, without limitation, the execution and/or delivery by Seller and BDA to Purchaser of each and every instrument to which either of them is a party referred to herein shall be true and correct or in all material respects at the Closing Date.Annex;
(d) All legal matters incident to the Loans Purchaser shall be reasonably have obtained all necessary governmental permits and approvals of its site plan, improvements and operations which are capable of being obtained and shall have received assurances satisfactory to it that all other necessary permits and approvals can be obtained at no cost to Purchaser, at the Administrative Agent, appropriate time from applicable governmental authority and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.Architectural Control Committee of ▇▇▇▇▇▇▇▇ Business & Industry Center; and
(e) Financing statements Purchaser has determined to its satisfaction that the Property is free and clear of any liens, encumbrances, covenants, conditions and restrictions except for the following:
(i) The defined easements, lot lines, building setback lines and restrictions shown on the Survey provided such easements, lines, and restrictions do not materially interfere with or limit Purchaser’s proposed use of the Property;
(ii) Zoning ordinances in form effect provided such ordinances do not materially interfere with or limit Purchaser’s proposed use of the Property;
(iii) Taxes for the year in which the Closing take place (which shall be prorated on a calendar year basis at the Closing);
(iv) Declaration of Covenants, Conditions and substance satisfactory Restrictions for ▇▇▇▇▇▇▇▇ Business & Industry Center;
(v) Rights of others in and to the Administrative Agent shall have been properly filed waters or creeks or branches, if any, crossing the Property and the natural flow thereof, free from diminution or pollution;
(vi) Agreement regarding Wetlands recorded in each office where necessary to perfect the security interest Book 1754, Page 368, ▇▇▇▇ County Registry; and
(vii) Such other exceptions as approved by Purchaser as provided in Article XI. All of the Administrative Agent, for foregoing items (i) through (vi) are hereinafter referred to as the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers“Permitted Exceptions.”
(f) The Borrowers shall have delivered to There has been no material change in the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery condition of the Loan Documents, (2) certified copies Property since completion of the articles or certificate of incorporation, bylaws, articles or certificate of organization studies and operating agreement of investigations made by Purchaser during the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may requestFeasibility Study Period.
(g) The Administrative Agent terms and conditions set out in Exhibit B hereto respecting the Improvements shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables been satisfied or provision deemed adequate by Purchaser shall have been made for the period ended on December 31, 2006, in form and substance satisfactory satisfying each such term or condition subsequent to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect theretoClosing.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 1 contract
Conditions Precedent to Closing. 10.1. The Closing and obligations of Buyer pursuant to this Agreement shall, at the initial disbursement option of the Loans shall Buyer, be subject to the following conditions precedent:
(a) The Loan Documents shall have been appropriately completed, duly executed by 10.1.1. All of the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties contained herein of Seller set forth in this Agreement shall be true and correct in all material respects at the Closing Date.
(d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, Effective Date and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would with such changes as are shown on the Inspection Period Certificate. Seller shall not have on or prior to Closing, failed to meet, comply with or perform in any Default material respect any conditions or Event agreements on Seller’s part as required by the terms of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of this Agreement. Notwithstanding the Collateral in form and substance acceptable foregoing or anything herein to it.
the contrary, if (i) The Administrative Agent Seller has failed to meet, comply with or perform in any material respect any conditions or agreements as aforesaid, or (ii) there has been a Material Adverse Change between the Inspection Period and the Closing Date in any of the following: (a) the representations and warranties of Seller, (b) the rent roll for the Property, or (c) the accounts receivable schedule, then Seller shall have received financing statementhave, judgment under either (i) or (ii), the right in Seller’s sole and tax lien searches reflecting that there are absolute discretion (but not the obligation) to cure same within twenty (20) days thereafter, and the Closing Date shall be extended as reasonably necessary in connection therewith. However, notwithstanding anything herein to the contrary, if applicable, in no Liens outstanding against event shall the Collateral other than those created date of Closing be extended for any period of time which would cause the Lender to withdraw its consent to the sale of the Property or permitted by this Agreement fail to close the Assumption. As used herein, a “Material Adverse Change” is a change in the facts or circumstances underlying a Seller representation or warranty, the rent roll, or the other Loan Documentsaccounts receivable schedule, which arises from changes at the Property (as distinguished from changes in economic conditions in general or from casualty damage, the effect of which is otherwise addressed in this Agreement), and which causes the fair market value of the Property, as mutually agreed by the parties (and if the parties cannot agree, as determined by a mutually acceptable third party appraiser), to decrease by at least Five Hundred Thousand and No/100 Dollars ($500,000.00).
Appears in 1 contract
Sources: Purchase and Sale Agreement (NNN 2003 Value Fund LLC)
Conditions Precedent to Closing. The Closing following are conditions precedent to Buyer's obligation to purchase the Property (the "Conditions Precedent"). The Conditions Precedent are intended solely for the benefit of Buyer and may be waived only by Buyer in writing. In the initial disbursement of event any Condition Precedent is not satisfied or waived by Buyer, Buyer may, in its sole and absolute discretion, terminate this Agreement at which point the Loans Earn▇▇▇ ▇▇▇ey shall be returned to Buyer and, subject to the following conditions precedent:provisions of Paragraph 7, all obligations of Buyer and Seller hereunder (except provisions of this agreement which recite that they survive termination) shall terminate and be of no further force or effect; provided, however, that in the event any of the Conditions Precedent have not been satisfied or waived, Buyer shall so inform Seller of same and Seller shall have thirty (30) days from the date of such notification to satisfy such Condition Precedent.
(a) The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event All of Default shall have occurred and be continuing.
(c) All Seller's representations and warranties contained herein in this Agreement shall be have been substantially true and correct in all material respects at when made and shall be substantially true and correct in all material respects as of the Closing Date.
(db) All legal matters incident The physical condition of the Property shall be substantially the same on the Closing Date as on the date of Buyer's execution of this Agreement, except for reasonable wear and tear and loss by casualty (subject to the Loans shall be reasonably satisfactory to the Administrative Agentprovisions of Paragraph 13, below) and the Borrowers agree to execute repairs, replacements and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may requestimprovements made with Buyer's written approval.
(ec) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest As of the Administrative AgentClosing Date, for there shall be no litigation or administrative agency or other governmental proceeding of any kind whatsoever, pending or threatened, which was not disclosed in writing to Buyer during the ratable benefit Due Diligence Period and which, after Closing would, in Buyer's reasonable opinion, materially adversely affect the value of the Lenders, Property or the ability of Buyer to operate the Property in the Collateralmanner in which it is currently being operated, termination statements and no proceedings shall have been filed with respect to any be pending or threatened which could or would cause the redesignation or other financing statements covering all or any portion modification of the Collateralzoning classification of, except with respect to financing statements perfecting Liens permitted by this Agreementor of any building or environmental code requirements applicable to, and all taxes and fees with respect to such recording and filing shall have been paid by any of the BorrowersProperty.
(fd) The Borrowers Seller shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles terminate at or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days prior to the Closing Date, from at no cost or expense to Buyer, any and all contracts or other agreements affecting the appropriate state official of any state in which the Borrowers or the Holding Company Property that are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may requestnot Assumed Contracts.
(ge) The Administrative Agent Seller shall have received substantially complied with all of Seller's material duties and obligations contained in this Agreement.
(lf) a Borrowing Base Certificate, Seller shall have delivered to Buyer tenant certificates (2"Tenant Certificates") an Aging Report, dated within thirty (330) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as days of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received Date in a field examination report form substantially similar to Exhibit "L" attached hereto from tenants under Leases of the Collateral Property representing ninety percent (90%) of the gross revenue of the Property; provided, that in the event that any state agency, including but not limited to the Texas Workforce Commission, requires the use of a different form, Buyer shall accept such different form and substance acceptable to itfor such tenant.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Industrial Properties Reit Inc)
Conditions Precedent to Closing. (a) The obligations of Operating Partnership to issue the Units in exchange for the Stock on the Closing and the initial disbursement of the Loans Date shall be subject to the satisfaction of the following conditions precedentconditions:
(ai) The Loan Documents 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 date hereof and at and as of the Closing Date as though such representations and warranties were made at and as of such date;
(vi) 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 Pricing Date to evidence compliance with the conditions set forth in this Section 2.2;
(viii) Contributor delivers the Release; and
(ix) each Related Agreement shall have been appropriately completedexecuted and delivered by each of the other Stockholders, duly executed and each condition precedent required by the parties thereto, recorded where necessary and delivered to the Administrative AgentRelated Agreements shall have been completed or waived.
(b) No Default The obligations of Contributor to contribute the Stock in exchange for the Units on the Closing Date shall be subject to the satisfaction of the following conditions:
(i) 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 Event causes to be issued to Contributor, the Units in accordance with the terms of Default this Agreement;
(iii) the IPO is consummated;
(iv) the representations and warranties contained in Article IV hereof and in all certificates to be delivered by Operating Partnership pursuant to this Agreement shall have occurred be true and accurate as of the date hereof and at and as of the Closing Date as though such representations and warranties were made at and as of such date;
(v) Operating Partnership delivers to Contributor the Release and such certificates as he may reasonably request on or prior to the Pricing Date to evidence compliance with the conditions set forth in this Section 2.2; and
(vi) Operating Partnership delivers, or causes to be continuingdelivered, the Opinion of Operating Partnership's counsel.
(c) All representations 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) and warranties contained herein shall be true and correct in all material respects at the Closing Date.
(d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agentvii), and Operating Partnership agrees to deliver or cause to be delivered, in escrow, to Hunton & ▇▇▇▇▇▇▇▇ the Borrowers agree 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 execute and deliver occur on or before the seventh (7th) business day following the Pricing Date, Hunton & ▇▇▇▇▇▇▇▇ shall return to the Administrative Agent such additional documents and certificates relating to the Loans Contributor or Operating Partnership, as the Administrative Agent reasonably case may request.
(e) Financing statements in form and substance satisfactory be, all items delivered to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid them by the Borrowersend of such day.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 1 contract
Sources: Stock Contribution and Exchange Agreement (Aegis Investment Trust)
Conditions Precedent to Closing. The Closing and the initial disbursement of the Loans Lenders shall not be subject obligated to make any Loan, or to take, fulfill, or perform any other action under this Agreement, until the following conditions precedenthave been satisfied to each Lender's reasonable satisfaction or waived in writing by each Lender:
4.1.1 Agent shall have received:
(a) The Loan Documents shall have been appropriately completedoriginals of the documents set forth on Schedule 1.1f (Schedule of Documents), each duly executed by the parties theretoappropriate parties, recorded where necessary and delivered together with such other assurances, certificates, documents or consents related to the Administrative Agent.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 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 Borrower under this Agreement shall be true and correct as of the Closing Date;
4.1.9 Borrower shall be in compliance with all the terms and provisions of the Loan Documents, and no Default or Event of Default shall have occurred and be continuing.;
(c4.1.10 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) All representations in connection with the transactions contemplated by this Agreement and warranties contained herein the Loan Documents;
4.1.12 The Closing Date shall be true and correct in all material respects at the Closing Date.occur on or before March __, 2013;
(d) 4.1.13 Borrower shall have established a non-interest bearing account with Agent;
4.1.14 All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance Loan Documents shall be satisfactory to 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 Administrative Agent terms of this Section 4.1 shall control, and Borrower shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by rights under this Agreement or the any other Loan DocumentsDocument until each of the conditions of this Section 4.1 has been complied with to Agent's and Lenders' satisfaction or specifically waived in a writing by Lenders.
Appears in 1 contract
Conditions Precedent to Closing. 7.1 Conditions to the Company's Obligations. The Closing and the initial disbursement obligations of the Loans 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 precedentconditions:
(a) The Loan Documents representations and warranties of such Purchaser contained in this Agreement shall have been appropriately completedtrue and correct when made and, duly executed by the parties theretoin addition, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties contained herein shall be repeated and true and correct in all material respects at on and as of the Closing 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) All legal matters incident 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 Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may requestCompany.
(e) Financing statements in form and substance satisfactory to the Administrative Agent Such Purchaser shall have been properly filed in each office where necessary to perfect entered into the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Registration Rights Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers 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, at or prior to the Closing, of the following conditions:
(a) The representations and warranties of the Company contained in this Agreement (i) shall have delivered 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 Administrative Agent case of clauses (1A) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery (B), as of the Loan Documents, (2) certified copies Closing Date with the same force and effect as though made on and as of the articles Closing Date.
(b) The Company 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 be performed and complied with at or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days prior to the 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 no litigation arising therefrom shall have been commenced and remain outstanding.
(f) The Company shall have delivered to such Purchaser a certificate executed on its behalf by a duly authorized representative, from dated the appropriate state official Closing Date, to the effect that each of any state the conditions specified in which the Borrowers or the Holding Company are incorporated, and paragraph (5a) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may requestthrough (e) of this Section 7.2 has been satisfied.
(g) The Administrative Agent No provision of any Applicable Law, injunction, order or 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.
(h) Such Purchaser shall have received an opinion of (li) a Borrowing Base CertificateH. ▇▇▇ ▇▇▇▇▇▇, General Counsel of the Company and (2ii) an Aging Report▇'▇▇▇▇▇▇▇▇ Graev & Karabell, (3) a contract status LLP, special counsel to the Company, in each case dated the Closing Date, and backlog report relating addressed to Eligible Receivables for such Purchaser, covering the period ended on December 31, 2006matters set forth in Exhibit D, in form and substance satisfactory reasonably acceptable to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to itPurchaser.
(i) The Administrative Agent Such Purchaser shall have received financing statementcertificates 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, judgment circumstance, condition, fact, effect or other matter which has had or could reasonably be expected to have a material adverse effect (x) on the business, assets, financial condition, prospects, or results of operations of the Company and tax lien searches reflecting that there are no Liens outstanding against its Subsidiaries taken as a whole or (y) on the Collateral other than those created or permitted by ability of the Company and its Subsidiaries to perform on a timely basis any material obligation under this Agreement or the other Loan DocumentsEquity Documents or to consummate the Issuance contemplated hereby; or (ii) any material disruption of or 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 Management Rights Agreements to the HMTF Funds.
(m) The Company shall have made all filings with, given all notices to, and received all approvals from, all Governmental Authorities (including, without limitation, the Federal Communications Commission and state public utility commissions) required in connection with the consummation of the Transactions, unless the failure to make such filings, give such notices or receive such approvals would not, individually or in the aggregate, have a Material Adverse Effect or a material adverse effect on the ability of the Company to consummate the Transactions.
Appears in 1 contract
Sources: Preferred Stock and Warrant Purchase Agreement (Icg Services Inc)
Conditions Precedent to Closing. The Closing This Agreement and the initial disbursement obligation of each Lender to make Loans and of the Loans LC Issuer to issue Facility LCs hereunder shall be subject to the satisfaction (or waiver) of the following conditions precedent:: 12660163v2
(a) The Loan Documents Arrangers and the Lenders shall have been appropriately completedreceived (i) the Annual Financial Statements, duly executed by the parties theretoQuarterly Financial Statements and the Pro Forma Financial Statements and (ii) satisfactory financial statement projections through and including the Borrower’s 2022 fiscal year, recorded where necessary and delivered to together with such information as the Administrative AgentAgent and the Lenders shall reasonably request.
(b) No Default or Event of Default The Arrangers and the Lenders shall have occurred received a certificate from the Borrower’s chief financial officer that the Borrower and its Subsidiaries, after giving effect to the Transactions to occur on the Closing Date and the incurrence of Indebtedness related thereto, are Solvent, which certificate shall be continuingin form and substance reasonably satisfactory to the Arrangers.
(c) All representations The Administrative Agent and warranties contained herein the Arrangers shall be true and correct in all material respects at have received the Closing Date.following:
(di) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies Copies of the articles or certificate of incorporationincorporation (or the equivalent thereof) of each Credit Party, bylawsin each case, articles or certificate of organization together with all amendments thereto, and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documentsgood standing, (4) a good standing certificate, dated each certified not more than 30 days prior to the Closing Date, from Date by the appropriate state official 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 state in other body authorizing the execution of the Loan Documents to which such Credit Party is a party.
(iii) An incumbency certificate, executed by the Borrowers Secretary or Assistant Secretary (or the Holding Company are incorporatedequivalent 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, and (5) such additional supporting documents as upon which certificate the Administrative Agent or counsel for and the Lenders shall be entitled to rely until informed of any change in writing by the applicable Credit Party.
(iv) A certificate reasonably acceptable to the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for signed by the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the chief financial statements officer of the Company for the period ended on December 31, 2006, Borrower and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists dated as of the Closing Date, nor would any Default or Event certifying that as of Default occur the Closing Date and after giving effect theretoto 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.
(hvi) The 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. For purposes of determining compliance with the conditions specified in this Section 4.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received a field examination report of notice from such Lender prior to the Collateral in form and substance acceptable to itproposed Closing Date specifying its objection thereto.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 1 contract
Conditions Precedent to Closing. 7.1 Conditions to the Company's Obligations. --------------------------------------- The Closing and the initial disbursement obligations of the Loans 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 precedentconditions:
(a) The Loan Documents representations and warranties of such Purchaser contained in this Agreement shall have been appropriately completedtrue and correct when made and, duly executed by the parties theretoin addition, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties contained herein shall be repeated and true and correct in all material respects at on and as of the Closing 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) All legal matters incident 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 Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may requestCompany.
(e) Financing statements in form and substance satisfactory to the Administrative Agent Such Purchaser shall have been properly filed in each office where necessary to perfect entered into the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Registration Rights Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers 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, at or prior to the Closing, of the following conditions:
(a) The representations and warranties of the Company contained in this Agreement (i) shall have delivered 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 Administrative Agent case of clauses (1A) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery (B), as of the Loan Documents, (2) certified copies Closing Date with the same force and effect as though made on and as of the articles Closing Date.
(b) The Company 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 be performed and complied with at or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days prior to the 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 no litigation arising therefrom shall have been commenced and remain outstanding.
(f) The Company shall have delivered to such Purchaser a certificate executed on its behalf by a duly authorized representative, from dated the appropriate state official Closing Date, to the effect that each of any state the conditions specified in which the Borrowers or the Holding Company are incorporated, and paragraph (5a) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may requestthrough (e) of this Section 7.2 has been satisfied.
(g) The Administrative Agent No provision of any Applicable Law, injunction, order or 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.
(h) Such Purchaser shall have received an opinion of (li) a Borrowing Base CertificateH. ▇▇▇ ▇▇▇▇▇▇, General Counsel of the Company and (2ii) an Aging Report▇'▇▇▇▇▇▇▇▇ Graev & Karabell, (3) a contract status LLP, special counsel to the Company, in each case dated the Closing Date, and backlog report relating addressed to Eligible Receivables for such Purchaser, covering the period ended on December 31, 2006matters set forth in Exhibit D, in form and substance satisfactory reasonably acceptable to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to itPurchaser.
(i) The Administrative Agent Such Purchaser shall have received financing statementcertificates 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, judgment circumstance, condition, fact, effect or other matter which has had or could reasonably be expected to have a material adverse effect (x) on the business, assets, financial condition, prospects, or results of operations of the Company and tax lien searches reflecting that there are no Liens outstanding against its Subsidiaries taken as a whole or (y) on the Collateral other than those created or permitted by ability of the Company and its Subsidiaries to perform on a timely basis any material obligation under this Agreement or the other Loan DocumentsEquity Documents or to consummate the Issuance contemplated hereby; or (ii) any material disruption of or 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 Management Rights Agreements to the HMTF Funds.
(m) The Company shall have made all filings with, given all notices to, and received all approvals from, all Governmental Authorities (including, without limitation, the Federal Communications Commission and state public utility commissions) required in connection with the consummation of the Transactions, unless the failure to make such filings, give such notices or receive such approvals would not, individually or in the aggregate, have a Material Adverse Effect or a material adverse effect on the ability of the Company to consummate the Transactions.
Appears in 1 contract
Sources: Preferred Stock and Warrant Purchase Agreement (Liberty Media Corp /De/)
Conditions Precedent to Closing. 11.01. The Closing and the initial disbursement of the Loans shall be Company’s obligations hereunder are subject to the satisfaction of the following conditions precedent:precedent on or before the Closing Date (unless waived in whole or in part by the Company in writing):
(a) The Loan Documents Owner shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to or for the Administrative Agentbenefit of the Company, on or before the Closing Date, all of the documents, other information and payments, if any, required of Owner pursuant to Section 12.01.
(b) No Default or Event All of Default shall have occurred and be continuing.
(c) All Owner’s representations and warranties contained herein made in this Agreement, as modified to reflect the operation of the Properties from and after the date hereof in the ordinary course (including, without limitation, leasing activities with respect thereto) and in accordance with the terms of this Agreement, shall be true and correct in all material respects at as of the date hereof and as of the Closing Date. In addition, Owner shall have performed all of its covenants and other obligations hereunder in all material respects.
(c) All Required Owner Consents shall have been obtained by Owner.
(d) All legal matters incident to This Agreement, the Loans LLC Agreement, the Services Agreement, the Side Letters and such other documents contemplated thereunder or hereunder, shall be reasonably satisfactory to have been duly authorized, executed and delivered by all of the Administrative Agentparties hereto and thereto (other than the Company, the REIT, the A-LPT, Galileo Funds Management Limited and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request▇▇▇▇ ▇▇▇▇▇▇▇).
(e) Financing statements in form The Title Company shall be prepared to issue the Title Policies and substance satisfactory all endorsements (including, without limitation, non-imputation endorsements) required by any lender (and the endorsements attached to the Administrative Agent Pro Forma Policies) for all of the Properties in the name of the Company and any lender of the Company, subject to the Permitted Exceptions.
(f) [Reserved]
(g) All Management Contracts affecting the Properties shall have been properly filed in each office where necessary to perfect the security interest terminated, effective as of the Administrative AgentClosing, for without liability to the ratable benefit Company.
(h) The transactions under the Redemption Agreement and the Management Rights P&S Agreement shall have closed (or shall close simultaneously with the transactions contemplated by this Agreement), provided that this shall not be a condition to closing to the extent the Company, the REIT and/or the A-LPT has failed to comply with its obligations thereunder.
(i) The transactions under the Underwriting Agreement shall have closed, provided that this shall not be a condition to closing to the extent that the A-LPT has failed to comply with its obligations under the Underwriting Agreement.
(j) All of the Lendersfinancings contemplated to close simultaneously with the Closing pursuant to that certain commitment letter (the “Commitment Letter“), dated July 16, 2005, between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending, Inc. (or an affiliate thereof) (the “Lender“), the Company and NXL shall have closed (or shall close simultaneously with the Closing) and, except for any amounts withheld by the Lender in respect of (i) any Lockout Property that is not conveyed to the Company at the Closing or (ii) any Property that is dropped pursuant to Section 2.01, Section 5.06 or Section 15.02, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending, Inc. (and/or its affiliates) shall have funded the entire principal amount of the loan proceeds in respect of such financings.
(k) The Amended and Restated Advisory Agreement in the Collateralform attached hereto as Exhibit G-1 between the Company and Galileo Advisory, termination statements LLC (the “Advisory Agreement“) and Side Letters have been duly authorized, executed and delivered by all the parties thereto (other than the Company). As used herein, the “Side Letters“ shall mean: (i) the letter agreement in the form attached hereto as Exhibit G-2 between the A-LPT, New Plan Australian Member, LLC (“New Plan Member“) and Galileo Advisory, LLC, (ii) the letter agreement in the form attached hereto as Exhibit G-3 between the A-LPT and the REIT, (iii) the letter agreement in the form attached hereto as Exhibit G-4 between Galileo Funds Management Limited, Galileo Advisory, LLC and the New Plan Member, (iv) the letter agreement in the form attached hereto as Exhibit G-5 between ▇▇▇▇ ▇▇▇▇▇▇▇ and the New Plan Member, (v) the letter agreement in the form attached hereto as Exhibit G-6 between the Company, the REIT and New Plan Member, and (vi) the letter agreement in the form attached hereto as Exhibit G-7 between the Company, the REIT, NXL and New Plan Member, as each may be modified, amended and/or supplemented from time to time with the consent of Owner and the Company in accordance with the terms thereof.
11.02. Owner’s obligations hereunder are subject to, and expressly contingent upon, the satisfaction of the following conditions precedent on or before the Closing Date (unless waived in whole or in part by Owner in writing):
(a) The Company shall have delivered to Owner all of the documents and payments, if any, required of the Company pursuant to Section 13.
(b) All of the Company’s representations and warranties made in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date. Moreover, the Company shall have performed all of its covenants and other obligations hereunder in all material respects.
(c) This Agreement, the LLC Agreement, the Services Agreement, the Side Letters and such other documents contemplated thereunder or hereunder shall have been filed with respect to any other financing statements covering duly authorized, executed and delivered by all or any portion of the Collateral, except with respect parties hereto and thereto (other than Owner).
(d) The transactions under the Underwriting Agreement shall have closed prior to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing (or concurrently with) the Closing.
(e) All Required Company Consents shall have been paid obtained by the BorrowersCompany.
(f) The Borrowers Company shall have delivered issued to Owner the Shares required to be issued to Owner pursuant to the Administrative Agent (1) certified copies terms of evidence of all corporate and company actions taken by this Agreement and/or the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may requestLLC Agreement.
(g) The Administrative Agent Advisory Agreement and the Side Letters shall have received (l) a Borrowing Base Certificatebeen duly authorized, (2) an Aging Report, (3) a contract status executed and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements delivered by all of the Company for parties thereto (other than Owner), all in the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists form attached as of the Closing Date, nor would any Default or Event of Default occur after giving effect theretoExhibit G hereto.
(h) The Administrative Agent All of the financings contemplated to close simultaneously with the Closing pursuant to the Commitment Letter shall have received a field examination report closed (or shall close simultaneously with the Closing) and, except for any amounts withheld by the Lender in respect of (i) any Lockout Property that is not conveyed to the Collateral in form and substance acceptable Company at the Closing or (ii) any Property that is dropped pursuant to itSection 2.01, Section 5.06 or Section 15.02.
(i) The Administrative Agent transactions under the Redemption Agreement and the Management Rights P&S Agreement shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against closed (or shall close simultaneously with the Collateral other than those created or permitted transactions contemplated by this Agreement or Agreement), provided that this shall not be a condition to closing to the other Loan Documentsextent that NXL has failed to comply with its obligations thereunder.
Appears in 1 contract
Sources: Contribution and Sale Agreement (New Plan Excel Realty Trust Inc)
Conditions Precedent to Closing. 6.1 Parties’ conditions precedent. The Closing and the initial disbursement obligations of the Loans Parties to complete the purchase of the Purchased Shares under this Agreement are subject to the satisfaction of, or compliance with, at or before the time of Closing:
(a) the Key Regulatory Approvals shall have been obtained; and
(b) no action or proceeding at law or in equity shall be pending by any Governmental Authority or Person to enjoin or prohibit the purchase or transfer of any of the Purchased Shares contemplated by this Agreement or the right of the Selling Stockholders to dispose of any of the Purchased Shares.
6.2 Parties’ waiver of conditions precedent. The conditions precedent set forth in section 6.1 hereinabove are for the exclusive benefit of each of the Parties hereto and may be waived by each or any of the Parties in writing and in whole or in part at any time on or prior to the Closing Date.
6.3 Selling Stockholders’ conditions precedent. The obligations of the Selling Stockholders to complete the sale of the Purchased Shares are subject to the satisfaction of, or compliance with, at or before the time of Closing, each of the following conditions precedent:
(a) The Loan Documents shall have been appropriately completed, duly executed by all of the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties contained herein of UEC made in or pursuant to this Agreement shall be true and correct in all material respects as at the Closing Date.
(d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest time of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the CollateralClosing, except with respect to financing statements perfecting Liens as such representations and warranties may be affected by the occurrence of events or transactions expressly contemplated and permitted by this Agreement, and extent that the failure or failures of such representations and warranties to be so true and correct, individually or in the aggregate, would not have a material adverse effect on UEC (disregarding for this purpose any materiality or material adverse effect qualifiers contained in such representations and warranties), and the Selling Stockholders shall have received a certificate from a senior officer of UEC confirming to his or her knowledge (after due inquiry), and without personal liability, the truth and correctness of such representations and warranties;
(b) UEC shall have performed or complied with, in all taxes material respects, all its obligations and fees covenants under this Agreement to be performed by it prior to Closing, and the Selling Stockholders shall have received a certificate from a senior officer of UEC confirming to his or her knowledge (after due inquiry), and without personal liability, such performance or compliance, as the case may be;
(c) UEC shall have complied with respect all applicable securities Laws in connection with the issuance of the Shares to such recording and filing the Selling Stockholders on or before the Closing Date;
(d) at the time of Closing, ▇▇▇▇ ▇▇▇▇▇▇ shall be the Chief Executive Officer of UEC;
(e) the PR Pre-Closing Reorganization shall have been paid by the Borrowers.completed; and
(f) The Borrowers the Approved Distribution shall have delivered to been completed.
6.4 Selling Stockholders’ waiver of conditions precedent. The conditions precedent set forth in section 6.3 hereinabove are for the Administrative Agent exclusive benefit of each of the Selling Stockholders and the Companies and may be waived by any one of the Pacific Road Funds (1) certified copies of evidence on behalf of all corporate Selling Stockholders) in writing, and company actions taken by in whole or in part, at any time after the Borrowers Effective Date and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days prior to the Closing Date.
6.5 UEC’s conditions precedent. The obligations of UEC to complete the purchase of the Purchased Shares are subject to the satisfaction of, from or compliance with, at or before the appropriate state official time of any state Closing, each of the following conditions precedent:
(a) all of the representations and warranties of the Selling Stockholders made in which or pursuant to this Agreement shall be true and correct as at the Borrowers time of Closing, except as such representations and warranties may be affected by the occurrence of events or transactions expressly contemplated and permitted by this Agreement (including, for certainty, the Holding Company are incorporatedPR Pre-Closing Reorganization), and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory except to the Lenderextent that the failure or failures of such representations and warranties to be so true and correct, individually or in the aggregate, would not have a material adverse effect on the Companies (4) the financial statements of the Company disregarding for the period ended on December 31, 2006this purpose any materiality or material adverse effect qualifiers contained in such representations and warranties), and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent UEC shall have received a field examination report certificate from a senior officer of each Selling Stockholder confirming to his or her Knowledge, and without personal liability, the Collateral in form truth and substance acceptable to it.correctness of such representations and warranties;
(ib) The Administrative Agent the Selling Stockholders shall have performed or complied with, in all material respects, all their respective obligations and covenants under this Agreement to be performed by it prior to Closing, and UEC shall have received financing statementa certificate from a senior officer of each Selling Stockholder confirming to his or her Knowledge, judgment and tax lien searches reflecting without personal liability, such performance or compliance, as the case may be;
(c) the Approved Distribution shall have been completed and UEC shall have received evidence satisfactory to it that, following such Approved Distribution, the Companies shall have a positive net working capital position after consideration of any other financial obligations that there may arise as a result of the Transaction; and
(d) UEC shall have received the executed BHI Counterpart Signature Page.
6.6 UEC’s waiver of conditions precedent. The conditions precedent set forth in section 6.5 hereinabove are no Liens outstanding against for the Collateral other than those created exclusive benefit of UEC and may be waived by UEC in writing, and in whole or permitted by this Agreement or in part, at any after the other Loan DocumentsEffective Date and prior to the Closing Date.
Appears in 1 contract
Sources: Share Purchase Agreement
Conditions Precedent to Closing. The effectiveness of this Agreement (which shall occur on the Closing and the initial disbursement of the Loans shall be Date) is subject to the satisfaction of the following conditions precedent:precedent as of the Closing Date on or before June 1, 2011 (and if the following conditions precedent are not satisfied by such time, this Agreement shall automatically terminate):
(a) The Loan Documents each Party shall have been appropriately completedreceived, 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 parties theretoTrust and the Custodian;
(d) the Capital Protection Provider shall have received an officer’s certificate of the Fund, recorded where necessary 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 Fund and the Secretary or any Assistant Secretary on behalf of the Fund and which certificate shall include (i) the incumbency and signature of the 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 Administrative Agent.Agent or the Capital Protection Provider pursuant to this Agreement, (ii) true and 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 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;
(be) No Default or Event of Default the Capital Protection Provider shall have occurred 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 continuing.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;
(cf) All 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 herein 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 Fund Event or Knock-Out Event exists as of the Closing Date;
(iii) No licenses, authorizations, consents or approvals as referred to in Section 4.01(n) are required as of the Closing Date or, in the case that such documents are required, that they are required and attaching copies thereof; and
(iv) The Aggregate Protected Amount as of the Closing Date does not exceed the Maximum Settlement Amount;
(j) the Fund shall have arranged with the Custodian for the Capital Protection Provider and the Agent to directly receive the applicable reports and information contained in Schedule II;
(k) 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 at on and as of the Closing Date.;
(dl) All each Party shall have received, in a form satisfactory to it, all corporate and other proceedings, and all documents, instruments and other legal matters incident reasonably requested by such Party evidencing or confirming the accuracy of the representations and warranties made by the other parties hereunder or the authority of such other parties to enter into this Agreement or the Loans other Capital Protection Document to which they are party; and
(i) the registration statement of the Fund shall have been filed with the Commission and become effective, (ii) the investment policies and objectives of the Fund as described in the Prospectus contained in such registration 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 Administrative Agent, and (iii) the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed determined in each office where necessary its reasonable discretion that any modifications to perfect such Prospectus from the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been draft most recently filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days Commission prior to the Closing Datedate 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 June 1, 2011, each of the Fund and the 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 appropriate state official Fund and the Capital Protection Provider on or before June 1, 2011, the Closing Date shall occur; provided, that such confirmation shall not constitute a waiver of any state in which the Borrowers or the Holding Company are incorporatednon-documentary condition that was not satisfied, and (5) such additional supporting documents as the Administrative Agent non-defaulting Party shall be entitled to exercise any rights it may have hereunder or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements under applicable Law arising out of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement failure of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect theretosuch condition.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 1 contract
Sources: Capital Protection Agreement (Janus Investment Fund)
Conditions Precedent to Closing. The Closing and the initial disbursement of the Loans (a) Buyer’s obligation to close hereunder shall be subject to expressly conditioned upon the occurrence or fulfillment of each of the following conditions precedent:on or prior to the Closing Date or such earlier date as may be provided in this Paragraph 4(a):
(i) All of the representations and warranties by Seller set forth in this Agreement shall be true and correct at and as of the Closing Date in all material respects, subject to Paragraph 3(h).
(ii) Seller shall have performed, in all material respects, all covenants, agreements and conditions required by this Agreement to be performed by Seller prior to the Closing Date. For the purpose of this paragraph, Seller’s material performance shall be defined as a) The Loan Documents delivery or execution of all documents reasonably necessary or contemplated by this Agreement to effectuate the Closing; b) delivery to the Title Company of all documents reasonably requested in order to issue the Title Policy required under this Agreement; and c) delivery of the balance of the purchase price, including adjustments, as required under this Agreement.
(iii) Seller shall have been appropriately completedobtain, duly as a condition of closing, an executed estoppel letter (the “Estoppel Certificate”) from Chase, in the form specified in the Lease. If any of the conditions set forth above in this Paragraph 4(a) is not satisfied by the parties theretoapplicable date set forth herein, recorded where necessary Buyer shall notify Seller within five (5) business days after such date, and delivered if such non-satisfaction continues for five (5) business days after such notice from Buyer thereof, this Agreement may, at Buyer’s option, be terminated upon notice to Seller within three (3) business days after the Administrative Agentend of such 5-day period, whereupon Buyer shall be entitled to receive back the Deposit, and if the failure of such condition is not the result of Buyer's default hereunder, Seller shall reimburse Buyer for Buyer's reasonable, documented, out-of-pocket costs incurred in seeking to acquire the Property, up to an aggregate amount of $10,000.00.
(b) No Default Seller’s obligation to close hereunder shall be expressly conditioned upon the occurrence or Event fulfillment of Default each of the following conditions on or prior to the Closing Date:
(i) All of the representations by Buyer set forth in this Agreement shall have occurred be true at and be continuingas of the Closing Date in all material respects.
(cii) All representations and warranties contained herein Buyer shall be true and correct have performed, in all material respects at the Closing Date.
(d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agentrespects, all covenants, agreements and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted conditions required by this Agreement, and all taxes and fees with respect Agreement to such recording and filing shall have been paid be performed by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days Buyer prior to the Closing Date, including delivery of the balance of the Purchase Price due at closing. If any of the conditions set forth above in this Paragraph 4(b) is not satisfied by the applicable date set forth herein and such non-satisfaction continues for fifteen (15) days after written notice from the appropriate state official of any state in which the Borrowers or the Holding Company are incorporatedSeller thereof, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificatethis Agreement may, (2) an Aging Reportat Seller’s option, be terminated by notice to Buyer, given within three (3) days after the end of such 5-day period, whereupon Seller shall be entitled to receive the Deposit from Title Company, as liquidated damages and not as a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006penalty, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect theretosuch receipt shall be Seller’s sole remedy.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 1 contract
Conditions Precedent to Closing. The Closing and the initial disbursement obligations of the Loans shall respective parties to close the purchase of the Purchased Assets will be subject to the following conditions precedentconditions:
A. Seller's Conditions. Seller will not be obligated to close the purchase of the Purchased Assets unless (ai) The Loan Documents shall have been appropriately completedPurchaser has complied with all of the terms and conditions of this Agreement to be met prior to Closing, duly executed by the parties thereto, recorded where necessary and has delivered to Seller all funds, instruments, and documents required to be deposited by Purchaser in connection with the Administrative Agent.
(b) No Default or Event Closing pursuant to the terms of Default shall have occurred this Agreement, and be continuing.
(c) All all of the representations and warranties of Purchaser and Clearview contained herein shall be in this Agreement remain true and correct in all material respects at the Closing Date.
(d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, on and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date; (ii) Seller has received, nor prior to the expiration of the Inspection Period, any required consents by the landlord or other third parties to the assignment of the Lease and other material agreements relating to the operation of the Theatres (the "Consents") and has received executed release of Seller's obligations under the Lease by the landlord of the Leasehold Theatre (the "Release"), which Release shall be in a form satisfactory to Seller; subject, however, to the following paragraph; (iii) Seller has obtained, prior to the expiration of the Inspection Period, landlord's approval of the Sublease ("Approval"); (iv) Seller has obtained at Closing the Lien Release of the Bronxville Theatre under the Indenture of Mortgage, on terms and conditions satisfactory to Seller; and (v) Purchaser proceeds to Closing on all five Theatres or just Cinema 304, as provided for in Paragraph 10. Prior to the expiration of the Inspection Period, Seller shall undertake to provide to Purchaser a letter from the mortgagee indicating that it will release the Bronxville Theatre from the Indenture of Mortgage and under what conditions that release will be given. Seller may at any time at or prior to Closing waive any one or more of the preceding requirements by written notice to Purchaser. If the Consents to assignment of the Lease have been obtained from the landlord of the Leasehold Theatre, but the Release of Seller has not been obtained at the time of Closing as provided in clause (ii) above, then such Release requirement shall be deemed waived by Seller, and the parties shall proceed to Closing; provided, however, that the conditions set forth below in this paragraph are satisfied. In the event a Release of Seller's obligations under the Lease cannot be obtained from the landlord of the Leasehold Theatre prior to Closing, then Purchaser agrees to (a) not assign or sublet such Lease without the prior written consent of Seller in its sole discretion, (b) not exercise any option to extend the term of the Lease without Seller's reasonable prior written consent (and further provided that, in that event, Purchaser shall make further efforts, in a commercially reasonable manner, to obtain the Release), (c) operate the Leasehold Theatre in a manner consistent with the Lease, (d) observe all of the covenants under the Lease and perform all of the tenant's obligations thereunder in accordance with the terms of the Lease, (e) indemnify and hold Seller harmless from and against any and all claims, losses, damages, costs and expenses (including, but not limited to, attorneys' and legal assistants' fees and expenses) arising out of the Lease for the Leasehold Theatre after the date of Closing; and (f) not commit any act that would jeopardize Seller's security interest. In the event that Purchaser fails to observe any Default of the covenants contained in this paragraph or Event is in default (after all applicable cure periods have expired under the Lease) under the terms of Default occur after giving effect theretothe Lease of the Leasehold Theatre (the "Defaulted Theatre"), or under the Assignment, Consent and Estoppel Agreement for the Defaulted Theatre in a form to be agreed upon by the parties and executed at the Closing (the "Assignment," which shall include a collateral assignment, security agreement and UCC-1 Financing Statement), then Seller may pursue its remedies against Clearview pursuant to the Guaranty of the Lease given under 24B hereof and may, without any obligation, perform Purchasers' obligations and covenants under the Lease of such Defaulted Theatre, and Seller shall be able to repossess the Defaulted Theatre and dispossess Purchaser and any other permitted assignees, subtenants, licensees or parties in possession, and Purchaser will be liable for any damages, costs and expenses, suffered by Seller as to such Defaulted Theatre (including, but not limited to, attorneys' and legal assistants' fees and expenses but excluding consequential damages) and the cost of any premium for any bond required in connection with an injunction brought to enforce Seller's remedies under this paragraph. The Assignment shall provide that Seller shall not exercise its rights to repossess the Defaulted Theatre unless Clearview has defaulted for the payment of money under its Guaranty hereunder or if Purchaser defaults under the Lease by failing to operate the Defaulted Theatre as a theatre on a continuous basis. In the event the Release is obtained subsequent to Closing, the Assignment and UCC-1 will be terminated, and the Guaranty shall be released as to the ▇▇▇▇▇ Theatre.
(h) The Administrative Agent shall have received a field examination report B. Purchaser's Conditions. Purchaser will not be obligated to close the purchase of the Collateral in form and substance acceptable to it.
Purchased Assets unless (i) The Administrative Agent shall have received financing statementSeller has complied with all of the terms and conditions of this Agreement to be met prior to and at the Closing, judgment and tax lien searches reflecting that there are no Liens outstanding against has delivered to Purchaser all instruments and documents required to be delivered by Seller in connection with the Collateral Closing pursuant to the terms of this Agreement; (ii) Seller has obtained a release of the Bronxville Theatre under the Indenture of Mortgage and the Purchased Assets will be free of all other Encumbrances other than those created or permitted by this Agreement or the other Loan Documents.Permitted Exceptions on terms and conditions satisfactory to Seller prior to Closing; (iii) Seller has obtained the consent of the landlord to the assignment of the Lease;
Appears in 1 contract
Sources: Purchase and Sale Agreement (Clearview Cinema Group Inc)
Conditions Precedent to Closing. The Closing and respective obligations of each party under this Agreement with respect to the initial disbursement of the Loans shall be Merger are subject to the satisfaction of each of the following conditions precedentconditions, unless waived by each of the parties that is the beneficiary of the satisfaction of such condition, at or before the Closing:
(a) The Loan Documents holders of a majority of the outstanding shares of Company Common Stock shall have been appropriately completedapproved this Agreement and the Merger in accordance with the DGCL, duly executed by the parties thereto, recorded where necessary certificate of incorporation and delivered to bylaws of the Administrative Agent.Company and the Regulations of the NASDAQ;
(b) No Default or Event of Default the Registration Statement shall have occurred become effective in accordance with the provisions of the Securities Act and be continuing.no stop order suspending such effectiveness shall have been issued and remain in effect;
(c) All the shares of Qwest Common Stock issuable in the Merger shall have been approved for inclusion in NASDAQ, if necessary, subject only to official notice of issuance;
(d) each of the Company, its Subsidiaries, Qwest and Qwest Subsidiary shall have obtained from each Governmental Body or other person each Approval or taken all actions required to be taken in connection with each Approval, and all waiting, review or appeal periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act or otherwise prescribed with respect to each Approval shall have terminated or expired, as the case may be, in each case with respect to an Approval that is required or advisable on the part of such person for (1) the due execution and delivery by such person of each Transaction Document to which it is or may become a party, (2) the conclusion of the Transactions, (3) the performance by such person of its obligations with respect to the Transactions under each Transaction Document to which it is or may become a party and (4) the exercise by such person of its rights and remedies with respect to the Transactions under each Transaction Document to which it is or may become a party or with respect to which it is or may become an express beneficiary, except in each case referred to in the preceding clauses (1), (2), (3) and (4) where the failure to obtain such Approval, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect on such person;
(e) no Regulation shall have been enacted, entered, promulgated or enforced by any Governmental Body which is in effect and (1) has the effect of making the Merger illegal or otherwise prohibiting the consummation of the Merger or (2) could reasonably be expected to have a Material Adverse Effect on any of the Company, its Subsidiaries, Qwest and Qwest Subsidiary;
(f) none of the Company, its Subsidiaries, Qwest and Qwest Subsidiary (1) is in violation or breach of or default with respect to (A) any Regulation of any Governmental Body or any decision, ruling, order or award of any arbitrator applicable to it or its business, properties or operations or (B) any agreement, indenture or other instrument to which it is a party or by which it or its properties may be bound or affected, (2) would be in violation or breach of or default with respect to any Regulation of any Governmental Body or any decision, ruling, order or award of any arbitrator applicable to it or its business, properties or operations in connection with or as a result of the conclusion of any of the Transactions or (3) has received notice that, in connection with or as a result of the conclusion of any of the Transactions, it is or would be in violation or breach of or default with respect to any Regulation of any Governmental Body or any decision, ruling, order or award of any arbitrator applicable to it or its business, properties or operations, except in each case referred to in the preceding clauses (1), (2), (3), and (4) for violations, breaches or defaults that, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect on such person;
(g) each Transaction Document required to be executed and delivered prior to the Effective Time shall have been so executed and delivered by the respective parties thereto;
(h) the representations and warranties of each other party contained herein in each Transaction Document to which such other party is a party shall be true and correct in all material respects at the Closing Date.
(d) All legal matters incident to the Loans shall be reasonably satisfactory to the Administrative Agent, on and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default with the same force and effect as though made on and as of the Closing Date (except for those representations and warranties that address matters only as of a particular date or Event only with respect to a particular period of Default occur after time, which representations or warranties shall be true and correct as of such date or with respect to such period), except where the failure of such representations or warranties to be so true and correct (without giving effect thereto.to any limitation as to "material," "materiality," "Material Adverse Effect," specified dollar amount thresholds or other similar qualifiers), individually or in the aggregate, has not had and could not reasonably be expected to have a Material Adverse Effect on such person;
(hi) The Administrative Agent each other party shall have performed, in all material respects, all of the covenants and other obligations required by each Transaction Document required to be performed by such other party at or before the Closing;
(j) counsel to the Company shall have received a field examination report tax representation letters substantially in the form of Exhibits 3.1(j)(1) and 3.1(j)(2) attached hereto, and the Company shall have received an opinion from its counsel on the Closing Date dated as of the Collateral Closing Date, substantially in the form of Exhibit 3.1(j)(3) attached hereto;
(k) each party shall have received from each other party the following, each dated the Closing Date, in form and substance acceptable reasonably satisfactory to it.the receiving party:
(i1) The Administrative Agent a certificate of the Secretary or an Assistant Secretary of such other party with respect to (A) the certificate of incorporation or articles of incorporation, as the case may be, of such other party, (B) the bylaws of such other party, (C) the resolutions of the Board of Directors of such other party, approving each Transaction Document to which such other party is a party and the other documents to be delivered by it under the Transaction Documents, and (D) the names and true signatures of the officers of such other party who signed each Transaction Document to which such other party is a party and the other documents to be delivered by such other party under the Transaction Documents;
(2) a certificate of the President or a Vice President of such other party to the effect that (A) the representations and warranties of such other party contained in the Transaction Documents to which it is a party are true and correct in all material respects as of the Closing Date and (B) such other party has performed, in all material respects, all covenants and other obligations required by the Transaction Documents to which it is a party to be performed by it on or before the Closing Date;
(3) with respect to the Company, certified copies, or other evidence reasonably satisfactory to Qwest and Qwest Subsidiary, of all Approvals of all Governmental Bodies and other persons with respect to the Company referred to in Section 4.3;
(4) with respect to Qwest, certified copies, or other evidence reasonably satisfactory to the Company, of all Approvals of all Governmental Bodies and other persons with respect to Qwest referred to in Section 5.3;
(5) with respect to Qwest Subsidiary, certified copies, or other evidence reasonably satisfactory to the Company, of all Approvals of all Governmental Bodies and other persons with respect to Qwest Subsidiary referred to in Section 5.3;
(6) a certificate of the Secretary of State of the jurisdiction in which such other party is incorporated, dated as of a recent date, as to the good standing of and payment of taxes by such other party and as to the charter documents of such other party on file in the office of such Secretary of State; and
(7) with respect to the Company, a certificate of the President or a Vice President of the Company with respect to U.S. real property interests, substantially in the form of Exhibit 3.1(k)(7) attached hereto; and
(l) Qwest and Qwest Subsidiary shall have received financing statementfrom the Company a written agreement of each person who is identified as an "affiliate" on the list furnished by the Company pursuant to Section 7.1(h), judgment which is substantially in the form of Exhibit 3.1(l) attached hereto, without material cost or other liability to any of the Company, its Subsidiaries, Qwest and tax lien searches reflecting that there are no Liens outstanding against the Collateral Qwest Subsidiary and any other than those created or permitted by this Agreement or the other Loan Documentsperson.
Appears in 1 contract
Sources: Merger Agreement (Icon CMT Corp)
Conditions Precedent to Closing. The effectiveness of this Agreement (which shall occur on the Closing and the initial disbursement of the Loans shall be Date) is subject to the satisfaction of the following conditions precedent:precedent as of the Closing Date on or before June 1, 2011 (and if the following conditions precedent are not satisfied by such time, this Agreement shall automatically terminate):
(a) The Loan Documents each Party shall have been appropriately completedreceived, 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 parties theretoTrust and the Custodian;
(d) the Capital Protection Provider shall have received an officer’s certificate of the Fund, recorded where necessary 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 Fund and the Secretary or any Assistant Secretary on behalf of the Fund and which certificate shall include (i) the incumbency and signature of the 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 Administrative Agent.Agent or the Capital Protection Provider pursuant to this Agreement, (ii) true and 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 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;
(be) No Default or Event of Default the Capital Protection Provider shall have occurred 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 continuing.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;
(cf) All 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 herein 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 Fund Event or Knock-Out Event exists as of the Closing Date;
(iii) No licenses, authorizations, consents or approvals as referred to in Section 4.01(n) are required as of the Closing Date or, in the case that such documents are required, that they are required and attaching copies thereof; and
(iv) The Aggregate Protected Amount as of the Closing Date does not exceed the Maximum Settlement Amount;
(j) the Fund shall have arranged with the Custodian for the Capital Protection Provider and the Agent to directly receive the applicable reports and information contained in Schedule II;
(k) 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 at on and as of the Closing Date.;
(dl) All each Party shall have received, in a form satisfactory to it, all corporate and other proceedings, and all documents, instruments and other legal matters incident reasonably requested by such Party evidencing or confirming the accuracy of the representations and warranties made by the other parties hereunder or the authority of such other parties to enter into this Agreement or the Loans other Capital Protection Document to which they are party; and
(m) (i) the registration statement of the Fund shall have been filed with the Commission and become effective, (ii) the investment policies and objectives of the Fund as described in the Prospectus contained in such registration 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 Administrative Agent, and (iii) the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent shall have been properly filed determined in each office where necessary its reasonable discretion that any modifications to perfect such Prospectus from the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been draft most recently filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days Commission prior to the Closing Datedate 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 June 1, 2011, each of the Fund and the 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 appropriate state official Fund and the Capital Protection Provider on or before June 1, 2011, the Closing Date shall occur; provided, that such confirmation shall not constitute a waiver of any state in which the Borrowers or the Holding Company are incorporatednon-documentary condition that was not satisfied, and (5) such additional supporting documents as the Administrative Agent non-defaulting Party shall be entitled to exercise any rights it may have hereunder or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements under applicable Law arising out of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement failure of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect theretosuch condition.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.
Appears in 1 contract
Sources: Capital Protection Agreement (Janus Investment Fund)
Conditions Precedent to Closing. The Closing and 10.1 Purchaser's obligation under this Agreement to purchase the initial disbursement of the Loans shall be Properties is subject to the fulfillment of each of the following conditions precedentconditions, subject, however, to the provisions of Section 10.3:
(a) The Loan Documents shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties of Sellers contained herein shall shall, subject to the provisions of Section 8.1(b), be true true, accurate and correct in all material respects at as of the Closing Date., except to the extent they relate only to an earlier date;
(b) Sellers shall be ready, willing and able to deliver title to the Properties in accordance with the terms and conditions of this Agreement;
(c) the Title Company shall be ready, willing and able to issue fee and leasehold title insurance to Purchaser in accordance with the terms and conditions of this Agreement at the Title Company's standard rates;
(d) All legal matters incident Sellers 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 Sellers at or prior to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.Closing;
(e) Financing statements in form and substance satisfactory any net credit due from Sellers to the Administrative Agent Purchaser by reason of Closing apportionments shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.paid; and
(f) The Borrowers all consents and approvals of governmental authorities and parties to agreements to which Seller is a party, or by which Seller's assets are bound, that are required with respect to the transactions contemplated by this Agreement shall have been obtained.
10.2 Sellers' obligation under this Agreement to sell the Properties to Purchaser is subject to the fulfillment of each of the following conditions, subject, however to the provisions of Section 10.3:
(a) the representations and warranties of Purchaser contained herein shall be true, accurate and correct in all material respects as of the Closing Date; 27
(b) Purchaser shall have paid to Sellers any net Closing apportionments due from Purchaser to Sellers;
(c) Purchaser shall have executed and delivered to Sellers each of the Notes and Mortgages and all other documents required under Section 7 and pursuant to the provisions of the Notes and Mortgages;
(d) Purchaser shall have delivered to Sellers all the Administrative Agent 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 Closing;
(1e) certified copies all consents and approvals of evidence of all corporate governmental authorities and company actions taken parties to agreements to which Purchaser is a party, or by which Purchaser's assets are bound, that are required with respect to the Borrowers and the Holding Company to authorize the execution and delivery consummation of the Loan Documentstransactions contemplated by this Agreement shall have been obtained; and
(f) on or prior to Closing Date, (2i) certified copies 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 articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days same shall have been discharged prior to the Closing Date, from the appropriate state official of any state in which the Borrowers and no such receiver, liquidator or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent trustee shall have received (l) a Borrowing Base Certificateotherwise been appointed, (2) an Aging Report, (3) a contract status and backlog report relating unless same shall have been discharged prior to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would (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, or (v) Purchaser shall not have filed a voluntary petition seeking reorganization or an arrangement with creditors or taken advantage of any Default bankruptcy, reorganization, insolvency, readjustment or Event debt, dissolution or liquidation law or statute, or filed an answer admitting the material allegations of Default occur after giving effect theretoa 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.
(h) The Administrative Agent 10.3 In the event that any condition contained in Section 10.1 or 10.2 is not satisfied, then, unless such failure is a default by Purchaser under Section 17.2 or a willful failure or refusal by Sellers pursuant to Section 17.3, as the case may be, the party entitled to the satisfaction of such condition as a condition to its obligation to close title hereunder shall have received a field examination report of as its sole remedy hereunder the Collateral right to elect to (a) waive such unsatisfied condition whereupon title shall close as provided in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or (b) terminate this Agreement. In the other Loan Documentsevent such party elects to terminate this Agreement, this Agreement 28 shall be terminated and neither party shall have any further rights, obligations or liabilities hereunder, except for the Surviving Obligations, and except that if Purchaser terminates the Agreement because a condition contained in Section 10.1 is not satisfied, then Purchaser shall be entitled to a return of the Fund, provided Purchaser is not otherwise in default hereunder. Nothing contained in this Section 10.3 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 10.1 or 10.2.
Appears in 1 contract
Conditions Precedent to Closing. The Closing and Neither Agent nor any Lender shall be obligated to make the initial disbursement of the Loans shall be subject Loans, or to take, fulfill, or perform any other action under this Agreement, until the following conditions precedenthave been satisfied to Agent’s complete satisfaction or waived in writing by Agent and the Lenders:
(a) The Loan Documents Agent shall have been appropriately completedreceived each of the documents, agreements, instruments, reports, certificates and statements set forth on the Schedule of Documents, each duly executed by the appropriate parties thereto, recorded where necessary and delivered in form and substance satisfactory to the Administrative Agent.;
(b) No Default or Event payment by Borrower of Default shall have occurred the Agent’s Fees and be continuing.all other fees, costs, and expenses of closing (including reasonable fees of counsel to Agent invoiced as of the Closing Date);
(c) All 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 transactions contemplated by this Agreement or 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 representations and warranties contained herein of Borrower under this Agreement and the 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., to that effect signed by an Authorized Signatory;
(df) All legal matters incident Agent shall determine that no Material Adverse Effect shall have occurred since the most recent audited Financial Statements delivered to Agent prior to the Loans shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.Closing Date;
(eg) Financing statements Agent shall have received opinions of counsel of (i) Winston & ▇▇▇▇▇▇ LLP, special counsel to Borrower and (ii) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special Maryland counsel to Borrower, each in form and substance satisfactory to the Administrative Agent shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.;
(fh) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received and approved Borrower’s Credit Policy, which shall be consistent with those previously represented to Agent and shall be acceptable to Agent in its sole discretion;
(li) Agent shall have received evidence satisfactory to Agent either that any Person having a Borrowing Base CertificateLien (except for Permitted Liens) with respect to the assets of Borrower shall have released such Lien or that such Lien shall be automatically terminated upon the funding of the Loans to be made on the Closing Date; and
(j) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, (2) an Aging Reportexecuted, (3) a contract status or recorded and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, 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 Lender, (4) the financial statements terms of the Company for the period ended on December 31, 2006this Section 2.1 shall control, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would Borrower shall not have any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by rights under this Agreement or the any other Loan DocumentsDocument until each of the conditions of this Section 2.1 has been complied with to Agent’s satisfaction or specifically waived in a writing by Agent.
Appears in 1 contract
Sources: Loan and Security Agreement (Hercules Technology Growth Capital Inc)
Conditions Precedent to Closing. The Closing and the initial disbursement of the Loans shall be (a) Buyer's obligation to Close under this Agreement is subject to the fulfillment of each of the following conditions precedent:conditions, subject, however to the provisions of Section 8(c):
(ai) The Loan Documents representations and warranties of Seller contained herein shall be 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 been appropriately completeddelivered all the documents and other items required by Section 9, duly executed 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 parties thereto, recorded where necessary and delivered Seller at or prior to the Administrative AgentClosing; 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) No Default or Event Seller's obligation under this Agreement to sell Seller's Partnership Interests to Buyer, is subject to the fulfillment of Default shall have occurred and be continuing.each of the following conditions, subject, however to the provisions of Section 8(c):
(ci) All the representations and warranties of Buyer contained herein shall be true materially true, accurate and correct as of the Closing Date except to the extent they relate only to an earlier date;
(ii) Buyer shall have delivered the Purchase Price and other funds required hereunder and all the documents to be executed by Buyer set forth in Section 10, 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 Buyer at or prior to the Closing; and
(iii) on or prior to Closing Date.
, (dA) All legal matters incident Buyer shall not have applied for or consented to the Loans shall be reasonably satisfactory to appointment of a receiver, trustee or liquidator for itself or any of its assets unless the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) Financing statements in form and substance satisfactory to the Administrative Agent same shall have been properly filed in each office where necessary to perfect the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowers.
(f) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days discharged prior to the Closing Date, from the appropriate state official of any state in which the Borrowers and no such receiver, liquidator or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent trustee shall have received (l) a Borrowing Base Certificateotherwise been appointed, (2) an Aging Report, (3) a contract status and backlog report relating unless same shall have been discharged prior to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) The Administrative Agent shall have received a field examination report of the Collateral in form and substance acceptable to it.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Collateral other than those created or permitted by this Agreement or the other Loan Documents.;
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pennsylvania Real Estate Investment Trust)
Conditions Precedent to Closing. The (a) All obligations hereunder of Seller are subject, at the sole option of Seller, to the fulfillment prior to or at the Closing of each and the initial disbursement every one of the Loans shall be subject to the following conditions precedentconditions:
(ai) The Loan Documents 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 appropriately completedcomplied with, duly executed by the parties thereto, recorded where necessary satisfied and delivered to the Administrative Agentperformed.
(b) No Default or Event of Default shall have occurred and be continuing.
(cii) All of the representations and warranties contained herein made by Buyer in this Agreement shall be true and correct in all material respects at both on and as of the date of this Agreement and on and as of the Closing Date.
(diii) All legal matters incident Buyer shall deliver at the Closing to Seller all of the Loans payments and documents referred to in Subsection 8(a) hereof.
(iv) No suit, action, or proceeding shall be reasonably satisfactory instituted before any court or governmental agency or other body to restrain or prevent the Administrative Agenttransaction contemplated hereunder, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates nor shall any governmental investigation relating to the Loans as transactions contemplated by this Agreement have been commenced and not resolved by the Administrative Agent reasonably may requestClosing Date.
(eb) Financing statements in form and substance satisfactory All obligations of Buyer under this Agreement are subject, at the sole option of Buyer, to the Administrative Agent fulfillment prior to or at the Closing of each and every one of the following conditions:
(i) All of the agreements and 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 properly filed in each office where necessary to perfect the security interest of the Administrative Agentcomplied with, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, satisfied and all taxes and fees with respect to such recording and filing shall have been paid by the Borrowersperformed.
(fii) The Borrowers shall have delivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery All of the Loan Documentsrepresentations and warranties made by Seller in this Agreement or in any other agreement, (2) certified copies 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 articles or certificate date of incorporation, bylaws, articles or certificate of organization this Agreement and operating agreement of the Borrowers on and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(hiii) The Administrative Agent business and properties of Seller shall not have received a field examination report been materially adversely affected in any way, whether by fire, casualty, act of the Collateral in form and substance acceptable to itGod or otherwise.
(iiv) The Administrative Agent Seller shall have received financing statementdeliver at the Closing to Buyer all of the documents referred to in Subsection 8(b) hereof.
(v) No suit, judgment and tax lien searches reflecting that there are no Liens outstanding against action, or proceeding shall be instituted before any court or governmental agency or other body to restrain or prevent the Collateral other than those created or permitted transaction contemplated hereunder, nor shall any governmental investigation relating to the transactions contemplated by this Agreement or have been commenced and not resolved by the other Loan DocumentsClosing Date.
(vi) A court order, acceptable to the Buyer in its sole discretion, issued by the United States Bankruptcy Court for the Western District of Washington approving this Agreement and 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 Buyer, 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. 10.01. The Closing and the initial disbursement of the Loans shall be Company's obligations hereunder are subject to the satisfaction of the following conditions precedentprecedent on or before the Closing Date:
(a) The Loan Documents Owner shall have been appropriately completed, duly executed by the parties thereto, recorded where necessary and delivered to or for the Administrative Agentbenefit of the Company, on or before the Closing Date, all of the documents, other information and payments, if any, required of Owner pursuant to SECTION 11 hereof.
(b) No Default or Event All of Default shall have occurred and be continuing.
(c) All Owner's representations and warranties contained herein made in this Agreement shall be true and correct in all material respects at as of the date hereof and as of the Closing Date. Moreover, Owner shall have performed in all material respects all of its covenants and other obligations hereunder.
(c) Any material consent or notification required to be obtained or given pursuant to the terms of any Lease or other material agreement affecting the Properties in connection with the consummation of the transaction contemplated by this Agreement shall have been obtained or given by Owner.
(d) All legal matters incident to of the Loans Assumption Consents, ▇▇▇ Approvals and ▇▇▇ Estoppels shall be reasonably satisfactory to the Administrative Agent, and the Borrowers agree to execute and deliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may requesthave been obtained.
(e) Financing statements in form This Agreement and substance satisfactory to the Administrative Agent Operating Agreement, shall have been properly filed in each office where necessary to perfect the security interest duly authorized, executed and delivered by all of the Administrative Agent, for parties hereto and thereto (other than the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the BorrowersCompany).
(f) The Borrowers Owner shall have delivered satisfied or caused to the Administrative Agent (1) certified copies of evidence of be satisfied all corporate and company actions taken other conditions precedent set forth in this Agreement or any such unsatisfied condition shall have been waived in writing by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(g) The Administrative Agent Title Company (hereinafter defined) shall be prepared to issue standard form owner's title insurance policies for the Properties in the name of the Company, subject to the Permitted Exceptions (as defined below).
(h) Owner shall have received delivered to or for the benefit of the Company the requisite estoppel certificates provided for in SECTION 6.04.
(i) All obligations of Owner and the SPE Entities under the Brokerage Agreements shall have been paid, except for any commissions resulting from the exercise following the Closing of renewal or expansion options by tenants and except for any obligations under any new leases signed after the date hereof pursuant to this Agreement;
(j) All property management agreements affecting the Properties shall have been terminated, effective as of the Closing, without liability for the Company;
(k) The mortgages presently securing the indebtedness of the Company to ▇▇▇▇▇ Fargo Bank shall have been assigned, without recourse, to any lender designated by the Company (such assignment to be subject to any existing limitations imposed by ▇▇▇▇▇ Fargo Bank under the mortgages or other documents governing such indebtedness); and
(l) a Borrowing Base Certificate, Each of the conditions contained in SECTIONS 10.01 (2a) an Aging Report, THROUGH (3k) a contract status and backlog report relating to Eligible Receivables are intended for the period ended on December 31, 2006, in form and substance satisfactory to the Lender, (4) the financial statements benefit of the Company for and may be waived in whole or in part, by the period ended on December 31Company, 2006but only by an instrument in writing signed by the Company.
10.02. Owner's obligations hereunder are subject to, and (5) a pro forma Covenant Compliance Certificateexpressly contingent upon, giving effect to the Transaction and the initial disbursement satisfaction of the Loansfollowing conditions precedent on or before the Closing Date:
(a) The Company shall have delivered to Owner all of the documents and payments, if any, required of the Company pursuant to SECTION 12 hereof.
(b) The Company shall have satisfied or caused to be satisfied all other conditions precedent set forth in this Agreement or any such unsatisfied condition shall have been waived by Owner.
(c) All of the Company's representations and certifying that no Default or Event warranties made in this Agreement shall be true and correct in all material respects as of Default exists the date hereof and as of the Closing Date. Moreover, nor would any Default or Event the Company shall have performed in all material respects all of Default occur after giving effect theretoits respective covenants and other obligations hereunder.
(hd) The Administrative Agent All of the Assumption Consents and ▇▇▇ Approvals shall have received a field examination report of the Collateral in form and substance acceptable to itbeen obtained.
(ie) The Administrative Agent This Agreement and the Operating Agreement shall have received financing statementbeen duly authorized, judgment executed and tax lien searches reflecting that there are no Liens outstanding against delivered by all of the Collateral parties hereto and thereto (other than those created Owner).
(f) That the Company will consummate, contemporaneously with the Closing, a refinancing of the mortgage indebtedness encumbering the ▇▇▇▇▇ Fargo Properties (as defined in the Operating Agreement). Any prepayment penalties imposed by the holder of such mortgage indebtedness in connection with such refinancing, shall be paid by Owner.
(g) Each of the conditions contained in SECTIONS 10.02
(a) THROUGH (e) are intended for the benefit of Owner and may be waived in whole or permitted in part, by Owner, but only by an instrument in writing signed by Owner.
10.03. If, prior to Closing, one or more of the Assumed Debt Holders refuses to give an Assumption Consent to Owner, then Owner and the Company shall amend this Agreement to provide for an alternative approach to enable the Properties encumbered by the Assumed Debt to be transferred in a way that complies with the Assumed Debt Holder's requirements, provided such requirements are reasonable, do not increase any of the obligations and liabilities of Owner and the Company and do not adversely affect any of the rights of the parties hereto. Without limiting the foregoing, the Company will not be required to agree to any change in the economic terms of the Assumed Debt or to any adverse change in the other Loan Documentsnature, extent or application of the collateral now given as security for the repayment of the Assumed Debt, except that the Company and the New SPE Entities (as applicable) may be required to assume liability for the performance of the non-recourse "carveouts" under the Assumed Debt. Subject to SECTION 13.06(a), Owner shall pay all reasonable out-of-pocket expenses incurred by the Company in cooperating with Owner to effectuate such transfer in accordance with the Assumed Debt Holder's requirements.
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Sources: Contribution and Sale Agreement (Keystone Property Trust)
Conditions Precedent to Closing. SECTION 7.1. Conditions to the Company’s Obligations. The Closing and the initial disbursement obligations of the Loans Company hereunder required to be performed on the Closing Date shall be subject subject, at the election of the Company, to the satisfaction or waiver, at or prior to the Closing, of the following conditions precedentconditions:
(a) The Loan Documents representations and warranties of each Holder contained in this Agreement shall have been appropriately completedtrue and correct when made and, duly executed by the parties theretoin addition, recorded where necessary and delivered to the Administrative Agent.
(b) No Default or Event of Default shall have occurred and be continuing.
(c) All representations and warranties contained herein shall be repeated and true and correct in all material respects at on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date.
(b) 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 be performed and complied with by such Holder at or prior to the Closing Date.
(c) Any applicable waiting period under the HSR Act shall have expired or been terminated.
(d) All legal matters incident to the Loans The Company shall be have received, on terms reasonably satisfactory to the Administrative AgentCompany, Apollo Management and Blackstone, any consent or waiver necessary under the Borrowers agree Credit Agreement to execute permit the performance of this Agreement and deliver to consummation of the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may requestTransactions.
(e) Financing statements in form and substance satisfactory to The stockholders of the Administrative Agent Company shall have been properly filed in each office where necessary to perfect approved the security interest of the Administrative Agent, for the ratable benefit of the Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted Issuance as required by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the BorrowersApplicable Law.
(f) The Borrowers Holders shall have delivered to entered into each of the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers Supplementary Registration Rights Agreement and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company 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 or the Holding Company are incorporated, and (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may requestSupplementary Shareholders Agreement.
(g) The Administrative Agent Holders shall have received (l) a Borrowing Base Certificate, (2) an Aging Report, (3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, 2006, in form and substance satisfactory delivered certificates representing their Shares to the Lender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect theretoCompany.
(h) The Administrative Agent No provision of any Applicable Law, injunction, order or decree of any Governmental Entity shall have received a field examination report be in effect which has the effect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the Collateral in form and substance acceptable to itTransactions.
(i) The Administrative Agent shall have received financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against concurrent consummation of the Collateral other than those created or permitted Exchange by this Agreement or the other Loan DocumentsApollo/Blackstone Shareholders (as defined in the Shareholders Agreement).
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