Conditions Precedent to the Closing. The obligations of each Noteholder to consummate the transactions contemplated by the Transaction Documents are subject to the satisfaction or waiver by the Required Noteholders on the Closing Date of each of the following conditions precedent: (a) The Noteholders or their counsel shall have received a notice of closing (the “Notice of Closing”) in the form of Schedule 7.2(a) at least five Business Days prior to the Closing, or such shorter period as the Company and the Required Noteholders shall agree. (b) The Company shall have duly issued and delivered to such Noteholder or their counsel, in accordance with ARTICLE II, the Amended Notes and New Warrants to be delivered to such Noteholder at the Closing. (c) Each of the Transaction Documents shall be in full force and effect and no term or condition thereof shall have been amended, waived or otherwise modified without the prior written consent of the Required Noteholders. (d) The representations and warranties of the Company set forth in ARTICLE V shall be true and correct as of the Closing with the same effect as though such representations and warranties had been made on and as of the Closing (except where any such representation and warranty speaks by its terms as of a different date, in which case it shall be true and correct as of such date), and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect. (e) The Company shall have performed all obligations required to be performed by it at or prior to the Closing under the Transaction Documents to which it is a party, and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect. (f) No Default or Event of Default shall have occurred and be continuing. (g) There is not any litigation or proceeding pending or threatened which seeks to restrain or invalidate the transactions contemplated by this Agreement. (h) The Company shall have delivered, or caused to be delivered, to the Noteholders or their counsel, all such other documents and agreements reasonably requested by the Noteholders in connection with the consummation of the transactions contemplated by this Agreement.
Appears in 3 contracts
Sources: Securities Amendment and Purchase Agreement (HC Innovations, Inc.), Securities Amendment and Purchase Agreement (HC Innovations, Inc.), Securities Amendment and Purchase Agreement (HC Innovations, Inc.)
Conditions Precedent to the Closing. The obligations of each Noteholder (a) Purchaser's obligation under this Agreement to consummate purchase the transactions contemplated by the Transaction Documents are Property is subject to the satisfaction or waiver by the Required Noteholders on the Closing Date fulfillment of each of the following conditions precedent:conditions, subject, however, to the provisions of Section 9(c):
(a) The Noteholders or their counsel shall have received a notice of closing (the “Notice of Closing”) in the form of Schedule 7.2(a) at least five Business Days prior to the Closing, or such shorter period as the Company and the Required Noteholders shall agree.
(b) The Company shall have duly issued and delivered to such Noteholder or their counsel, in accordance with ARTICLE II, the Amended Notes and New Warrants to be delivered to such Noteholder at the Closing.
(c) Each of the Transaction Documents shall be in full force and effect and no term or condition thereof shall have been amended, waived or otherwise modified without the prior written consent of the Required Noteholders.
(di) The representations and warranties of the Company set forth in ARTICLE V Seller contained herein shall be true materially true, accurate and correct as of the Closing Date, all subject to the provisions of Sections 7(a)(ii) and 7(a)(iv);
(ii) Seller shall be ready, willing and able to deliver title to the Property in accordance with the same effect as though such representations terms and warranties had been made on conditions of this Agreement;
(iii) Seller shall have delivered all the documents and as of the Closing (except where any such representation and warranty speaks by its terms as of a different date, in which case it shall be true and correct as of such date)other items required pursuant to Section 10, and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect.
(e) The Company shall have performed all obligations other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by it Seller at or prior to the Closing Closing;
(iv) Purchaser shall have obtained an estoppel certificate from each tenant under an Anchor Lease in the Transaction Documents form required under such Anchor Lease and each third party to a Shopping Center Agreement in the form required in such Shopping Center Agreement, which estoppel certificate shall not disclose any commitments by Seller to such tenant or party or defaults under such Anchor Lease or Shopping Center Agreement by Seller that in each case would either have a material adverse effect on the Property or impose a material adverse financial obligation on Purchaser, and of which, in each case, Purchaser was not aware as of the date of this Agreement;
(v) All consents and approvals of governmental authorities and parties to agreements to which it Seller is a party, and such Noteholder shall have received a certificate signed on behalf party or by which Seller's assets are bound that are required with respect to the consummation by Seller of the Company by an officer of the Company to such effect.
(f) No Default or Event of Default shall have occurred and be continuing.
(g) There is not any litigation or proceeding pending or threatened which seeks to restrain or invalidate the transactions contemplated by this AgreementAgreement shall have been obtained and copies thereof shall have been delivered to Purchaser at or prior to the Closing;
(vi) On or prior to the Closing Date, (A) 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 18 the same shall have been discharged prior to the Closing Date, and no such receiver, liquidator or trustee shall have otherwise been appointed, unless same shall have been discharged prior to the Closing Date, (B) Seller shall not have admitted in writing an inability to pay its debts as they mature, (C) Seller shall not have made a general assignment for the benefit of creditors, (D) Seller shall not have been adjudicated a bankrupt or insolvent, or had a petition for reorganization granted with respect to Seller, (E) Seller shall not have filed a voluntary petition seeking reorganization or an arrangement with creditors or taken advantage of any bankruptcy, reorganization, insolvency, readjustment or debt, dissolution or liquidation law or statute, or filed an answer admitting the material allegations of a petition filed against it in any proceedings under any such law, or had any petition filed against it in any proceeding under any of the foregoing laws unless the same shall have been dismissed, canceled or terminated prior to the Closing Date;
(vii) On or prior to the Closing Date, the Development Agreement substantially in the form of EXHIBIT "J" annexed hereto and made a part hereof between Seller and the City of San Buenaventura shall have been executed and delivered and the leases referred to therein shall have been executed and delivered in escrow in accordance with escrow instructions substantially in the form of EXHIBIT "K" annexed hereto and made a part hereof.
(hviii) Simultaneously with the Closing, the closings shall occur under both (i) that certain Sale and Purchase Agreement of even date herewith between MCA Fresno Associates, L.P. and MR Fresno Limited Partnership with respect to certain property in Fresno, California known as Fresno Fashion Fair Mall and (ii) that certain Sale and Purchase Agreement of even date herewith between MCA Huntington Associates, L.P. and ▇▇ ▇▇▇▇▇▇▇▇▇▇ Limited Partnership with respect to certain property in Huntington Beach, California known as Huntington Center (such Sale and Purchase Agreements collectively, the "Other Sale Agreements").
(b) Seller's obligation under this Agreement to sell the Property to Purchaser is subject to the fulfillment of each of the following conditions, subject, however to the provisions of Section 9(c):
(i) The Company representations and warranties of Purchaser contained herein shall be materially true, accurate and correct as of the Closing Date;
(ii) Purchaser shall have delivered, or caused delivered the funds required hereunder and all the documents to be deliveredexecuted by Purchaser set forth in Section 11 and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by Purchaser at or prior to the Noteholders Closing;
(iii) All consents and approvals of governmental authorities and parties to agreements to which Purchaser is a party or their counsel, all such other documents and agreements reasonably requested by the Noteholders in connection which Purchaser's assets are bound that are required with respect to the consummation of the transactions contemplated by this Agreement shall have been obtained, including the ▇▇▇▇▇ Fargo Consent, and Purchaser shall have so certified to Seller at or prior to the Closing;
(iv) On or prior to the Closing Date, (A) neither Purchaser nor The Macerich Partnership L.P. shall have applied for or consented to the appointment of a receiver, trustee or liquidator for itself or any of its assets unless the same shall have been discharged prior to the Closing Date, and no such receiver, liquidator or trustee shall have otherwise been appointed, unless same shall have been discharged prior to the Closing Date, (B) neither Purchaser nor The Macerich Partnership L.P. shall have admitted in writing an inability to pay its debts as they mature, (C) neither Purchaser nor The Macerich Partnership L.P. shall have made a general assignment for the benefit of creditors, (D) neither Purchaser nor The Macerich Partnership L.P. shall have been adjudicated a bankrupt or insolvent, or had a petition for reorganization granted with respect to Purchaser or The Macerich Partnership L.P., (E) neither Purchaser nor The Macerich Partnership L.P. 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 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;
(v) The additional matters set forth in SCHEDULE "11" annexed hereto and made a part hereof, if any, shall have occurred or been delivered to Seller, as applicable, at or prior to the Closing; and
(vi) Simultaneously with the Closing, the closings shall occur under both of the Other Sale Agreements.
(c) In the event that any condition contained in Section 9(a) or (b) is not satisfied, the party entitled to the satisfaction of such condition as a condition to its obligation to close title hereunder shall have as its sole remedy hereunder the right to elect to (i) waive such unsatisfied condition whereupon title shall close as provided in this Agreement or (ii) terminate this Agreement. In the event such party elects to terminate this Agreement, this Agreement shall be terminated and neither party shall have any further rights, obligations or liabilities hereunder, except as otherwise expressly provided herein (those rights, obligations and liabilities hereunder that expressly by the terms of this Agreement survive the Closing are herein collectively referred to as the "Surviving Obligations") and except that Purchaser (subject to the provisions of Sections 19 and 26 and provided Purchaser is not otherwise in default hereunder) shall be entitled to a return of the Downpayment. Nothing contained in this Section 9(c) shall be construed so as to bestow any right of termination upon a party for the failure of a condition to be satisfied unless such party is expressly entitled to the satisfaction of such condition as provided in Section 9(a) or (b).
Appears in 1 contract
Conditions Precedent to the Closing. (a) The obligations of each Noteholder the Purchaser to consummate perform its obligations under this Agreement at the transactions contemplated by the Transaction Documents Closing are subject to the satisfaction fulfillment prior to or waiver by the Required Noteholders on at the Closing Date of each of the following conditions precedentconditions, any one or more of which may be waived by the Purchaser:
(ai) The Noteholders or their counsel Holdings shall have received a notice consummated the Equity Financing;
(ii) the Purchaser and the Seller shall have executed and delivered the Amended EVLT Promotion Agreement;
(iii) the Seller shall have executed and delivered the Assignment of closing Patents;
(iv) Holdings shall have caused the “Notice Stock Incentive Plan to be amended as follows:
(1) Section 1 ("Purpose") shall be expanded to provide for grants of Closing”) options to consultants where such grants are in the form best interests, and further the business of, Diomed and its subsidiaries, (2) Section 2(u) ("Definitions") shall be expanded to include consultants in the definition of Schedule 7.2(a"Participant", and (3) at least five Business Days Section 5(a) ("Stock Options") shall be revised to provide that the exercise price may be less than 100 percent of the Fair Market Value on the Date of Grant if the Company expressly so agrees in writing on or prior to the Closing, or such shorter period as the Company and the Required Noteholders shall agree.Date of Grant; and
(bv) The Company shall have duly issued and delivered to such Noteholder or their counsel, in accordance with ARTICLE II, the Amended Notes and New Warrants to be delivered to such Noteholder at the Closing.
(c) Each of the Transaction Documents shall be in full force and effect and no term or condition thereof shall have been amended, waived or otherwise modified without the prior written consent of the Required Noteholders.
(d) The representations and warranties of the Company Seller set forth in ARTICLE V Section 2.5 shall be true and correct as of the time of the Closing.
(b) The obligations of the Seller to perform its obligations under this Agreement at the Closing with are subject to the same effect as though such fulfillment prior to or at the Closing Date, of the following conditions, any one or more of which may be waived by the Seller:
(i) Holdings shall have consummated the Equity Financing;
(ii) the Purchaser and the Seller shall have executed and delivered the Amended EVLT Promotion Agreement;
(iii) the Purchaser shall have executed and delivered the Stock Option Agreement;
(iv) the Purchaser shall have paid the Cash Portion of the Purchase Price to the Seller; and
(v) the representations and warranties had been made on and as of the Closing (except where any such representation and warranty speaks by its terms as of a different date, Purchaser set forth in which case it Section 2.6 shall be true and correct as of such date), and such Noteholder shall have received a certificate signed on behalf the time of the Company by an officer of the Company to such effectClosing.
(e) The Company shall have performed all obligations required to be performed by it at or prior to the Closing under the Transaction Documents to which it is a party, and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect.
(f) No Default or Event of Default shall have occurred and be continuing.
(g) There is not any litigation or proceeding pending or threatened which seeks to restrain or invalidate the transactions contemplated by this Agreement.
(h) The Company shall have delivered, or caused to be delivered, to the Noteholders or their counsel, all such other documents and agreements reasonably requested by the Noteholders in connection with the consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Conditions Precedent to the Closing. The obligations obligation of each Noteholder the Investors to consummate purchase and pay for their respective Preferred Shares at the transactions contemplated by the Transaction Documents are Closing is subject to the satisfaction or waiver by the Required Noteholders on the Closing Date of each of the following conditions precedent:
(a) The Noteholders All proceedings to have been taken and all waivers and consents to be obtained in connection with the transactions contemplated by this Agreement shall have been taken or obtained, and all documents incidental thereto shall be satisfactory to the Investors and its counsel, and the Investors and their respective counsel shall have received a notice copies (executed or certified, as may be appropriate) of closing (all documents which the “Notice of Closing”) investor or counsel may reasonably have requested in the form of Schedule 7.2(a) at least five Business Days prior to the Closing, or connection with such shorter period as the Company and the Required Noteholders shall agreetransactions.
(b) The Company All legal matters incident to the purchase of the Preferred Shares shall be satisfactory to the respective Investor's counsel, and the Investors shall have duly issued received from Squadron, Ellenoff, Plesent & Shei▇▇▇▇▇, ▇▇P, counsel for the Corporation, such firm's opinion addressed to the Investors and delivered to such Noteholder or their counsel, dated the date of the Closing in accordance with ARTICLE II, substantially the Amended Notes and New Warrants to be delivered to such Noteholder at the Closingform of Exhibit D hereto.
(c) Each All consents, permits and approvals, qualifications and/or registrations required to be obtained or effected under any applicable securities or "Blue Sky" laws of the Transaction Documents shall be in full force and effect and no term or condition thereof any jurisdiction shall have been amendedobtained or effected, waived and the Investors shall have received from Squadron, Ellenoff, Plesent & Shei▇▇▇▇▇, ▇▇P a Blue Sky Memorandum or otherwise modified without the prior written consent of the Required Noteholdersother confirmation to that effect in form reasonably satisfactory to counsel for each such Investor.
(d) The representations and warranties of the Company set forth in ARTICLE V Corporation contained herein shall be true and correct on and as of the date of such Closing with the same force and effect as though such representations and warranties had been made on and as of the Closing (except where any such representation and warranty speaks by its terms as of a different date, in which case it shall be true and correct as of such date), and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect.
(e) The Company A duly executed Certificate in the form of Exhibit A hereto shall have performed all been filed with and accepted by the Secretary of State of Delaware and shall be effective under the laws of the State of Delaware.
(f) The Corporation shall have delivered to the Investors a certificate or certificates, dated the Closing Date, of the Secretary or Assistant Secretary of the Corporation certifying as to (i) the resolutions of the Corporation's Board of Directors and stockholders authorizing the execution and delivery of this Agreement and the Certificate, the issuance to the Investors of their respective Preferred Shares, the execution and delivery of such other documents and instruments as may be required by this Agreement, and the consummation of the transactions contemplated hereby, and certifying that such resolutions were duly adopted and have not been rescinded or amended as of said date, and (ii) the name and the signature of the officers of the Corporation authorized to sign, as appropriate, this Agreement and the other documents and certificates to be delivered pursuant to this Agreement by either the Corporation or any of its officers.
(g) The Corporation shall have delivered to the Investors a certificate or certificates, dated the Closing Date, of the Chairman of the Corporation certifying as to the accuracy and completeness of the representations and warranties made by the Corporation pursuant to this Agreement and as to the fulfillment of the conditions specified in paragraphs (c), (e) and (f) of this Section 7.
(h) The Corporation shall have executed and delivered (i) the Collaborative Research and License Agreement, of even date herewith, between the Corporation and Roche in substantially the form of Exhibit E hereto (the "Roche Collaboration Agreement"), (ii) the Funded Research and License Agreement, of even date herewith, between the Corporation and CSHL in substantially the form of Exhibit F hereto (the "CSHL Research Agreement"), (iii) the License Agreement, of even date herewith, between the Corporation and CSHL in substantially the form of Exhibit G hereto (the "CSHL License Agreement, (iv) the License and Services Agreement, of even date herewith, between the Corporation and OSI in substantially the form of Exhibit H hereto (the "OSI License Agreement") and (v) the Stockholders' Agreement, and shall have complied with its obligations under this Agreement required to be performed by it at or prior to the Closing under the Transaction Documents to which it is a party, and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effectClosing.
(f) No Default or Event of Default shall have occurred and be continuing.
(g) There is not any litigation or proceeding pending or threatened which seeks to restrain or invalidate the transactions contemplated by this Agreement.
(h) The Company shall have delivered, or caused to be delivered, to the Noteholders or their counsel, all such other documents and agreements reasonably requested by the Noteholders in connection with the consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Convertible Preferred Stock Purchase Agreement (Osi Pharmaceuticals Inc)
Conditions Precedent to the Closing. 17.1. CONDITIONS PRECEDENT TO THE PURCHASERS' AND L-P CANADA'S OBLIGATIONS. The obligations of each Noteholder the Purchasers and L-P Canada under this Agreement to consummate the transactions contemplated by the Transaction Documents are this Agreement shall be subject to the satisfaction satisfaction, on or waiver by the Required Noteholders on prior to the Closing Date of each Date, of the following conditions precedentconditions, any of which may be waived at the option of the Purchasers or L-P Canada:
(a) The Noteholders or their counsel There shall have received a notice of closing (the “Notice of Closing”) been no material breach by ▇▇▇▇▇ in the form performance of Schedule 7.2(a) at least five Business Days prior to the Closing, or such shorter period as the Company and the Required Noteholders shall agreeany of its covenants.
(b) The Company representations and warranties of ▇▇▇▇▇ contained or referred to in this Agreement shall have duly issued be true and delivered to correct in all material respects on the Closing Date as if made on the Closing Date (except for changes contemplated or permitted by this Agreement and representations and warranties made as of a specified date, which shall be true and correct in all material respects as of such Noteholder or their counsel, in accordance with ARTICLE II, the Amended Notes and New Warrants to be delivered to such Noteholder at the Closingdate).
(c) Each All corporate action necessary to authorize the execution, delivery and performance of the Transaction Documents shall be in full force this Agreement by ▇▇▇▇▇ and effect and no term or condition thereof shall have been amended, waived or otherwise modified without the prior written consent of the Required Noteholders.
(d) The representations and warranties of the Company set forth in ARTICLE V shall be true and correct as of the Closing with the same effect as though such representations and warranties had been made on and as of the Closing (except where any such representation and warranty speaks by its terms as of a different date, in which case it shall be true and correct as of such date), and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect.
(e) The Company shall have performed all obligations required to be performed by it at or prior to the Closing under the Transaction Documents to which it is a party, and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect.
(f) No Default or Event of Default shall have occurred and be continuing.
(g) There is not any litigation or proceeding pending or threatened which seeks to restrain or invalidate the transactions contemplated by this Agreement.
(h) The Company shall have delivered, or caused to be delivered, to the Noteholders or their counsel, all such other documents and agreements reasonably requested by the Noteholders in connection with the consummation of the transactions contemplated hereby shall have been duly and validly taken, and a good standing certificate and certified copies of all directors and shareholder resolutions authorizing the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby shall be delivered to the Purchasers.
(d) All corporate and other proceedings in connection with the transactions contemplated and all documents and instruments incident to such transactions shall be reasonably satisfactory in substance and form to the Purchasers' Solicitors, and ▇▇▇▇▇ shall have made available to the Purchasers for examination the originals or true, complete and correct copies of all records and documents relating to the Operations and the Assets which the Purchasers may reasonably request.
(e) L-P Engineered Wood shall have received a private ruling from the British Columbia Consumer Taxation Branch confirming the availability of an exemption from the payment of social services taxes pursuant to the SOCIAL SERVICE TAX ACT (British Columbia) in respect of the conveyance of the ▇▇▇▇▇ Equipment hereunder. L-P Engineered Wood agrees that the ruling request will be made forthwith after the date of this Agreement and that the ▇▇▇▇▇' Solicitors will be afforded an opportunity to review and comment upon the form of the ruling request before it is submitted.
(f) All consents or approvals required to be obtained by ▇▇▇▇▇ or the Purchasers or both for the purpose of selling, assigning or transferring the Assets shall have been obtained with such consents and/or approvals being on terms and conditions satisfactory to the Purchasers.
(g) The Ministry of Forests shall have consented to the assignment of the Forest Tenures and any requirements imposed by the Minister of Forests for British Columbia as a condition of his consenting to the transfer of the Forest Tenures to L-P Engineered Wood shall not, in L-P Engineered Wood's opinion, acting reasonably, materially reduce the value of the Forest Tenures or have a material adverse effect on the Operations or on any other forest industry operations of L-P Engineered Wood's or its Affiliates' in British Columbia, provided that the following requirements shall be deemed not to materially reduce the value of such tenures or have a Material Adverse Effect:
(i) the reduction by 5% of the allowable annual cut under the replaceable licences included in the Forest Tenures as provided in Section 56 of the FOREST ACT and the requirement to obtain and submit an independent current appraisal of the value of the timber within the timber licences included in the Forest Tenures and payment to the Crown of 5% of the value of that timber as provided in Section 56 of the FOREST ACT;
(ii) confirmation by L-P Engineered Wood of:
A. maintenance of cut control requirements under the Forest Tenures;
B. continued operation of the timber processing facilities included in the Assets;
C. acceptance of all obligations of the licensee under the Forest Tenures; and
D. participation in programs as required by, and compliance with operational requirements of, the Ministry of Forests for British Columbia applicable generally to the forest industry.
(h) Consent shall have been received from the Minister of Foreign Affairs to the transfer to L-P Engineered Wood of the softwood lumber quota allocation associated with the Operations on terms satisfactory to L-P Engineered Wood.
(i) L-P Engineered Wood shall have reached an agreement with both Messrs. ▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ for employment with L-P Engineered Wood, on terms and conditions satisfactory to L-P Engineered Wood.
(j) L-P Engineered Wood shall have received evidence satisfactory to it that no liabilities or obligations arising out of any plans or arrangements developed by the Job Protection Commission of the Province of British Columbia, whether actual or contingent, exist or may attach to the Assets or the Operations after the Closing Date.
(k) ▇▇▇▇▇ shall have furnished the Purchasers with all documents and other items required under Sections 18.2 together with such other and further documents and certificates, including certificates of ▇▇▇▇▇' officers and others, as the Purchasers shall reasonably request in light of customary practice in transactions of this kind to evidence compliance with the conditions in this Agreement.
(l) No material damage shall have occurred to any of the Assets to the extent that such damage or loss is not:
(i) repaired by the Closing Date; or
(ii) covered by insurance proceeds which are assigned to the Purchasers at Closing and which are not included in the Working Capital Assets; or
(iii) included in the Working Capital Liabilities or the Assumed ▇▇▇▇▇ Liabilities.
(m) L-P Engineered is satisfied that all liabilities and obligations of ▇▇▇▇▇ in respect of the security interests identified as Permitted Encumbrances on Appendix A of Schedule 2.1(by) by (2) and which remain registered against any of the Assets at the time of Closing, if any, have been fully paid and satisfied.
(n) L-P Engineered Wood is satisfied that it will have no liability after Closing and that the Assets will be subject to no Lien after Closing in respect of any Claim by Emerald Coast Timber Ltd., the Workers' Compensation Board or the Employment Standards Branch.
Appears in 1 contract
Conditions Precedent to the Closing. (a) The obligations obligation of each Noteholder the Buyers to consummate take the transactions contemplated by the Transaction Documents actions set forth in Section 1 above are subject to the satisfaction or waiver as of the Closing of the following conditions; provided that any condition specified in this Section 7.4(a) may be waived if consented to in writing by the Required Noteholders on Buyers:
(i) The representations and warranties contained in Sections 3 and 4 hereof shall be true and correct in all material respects at and as of the Closing as though then made and as though the Closing Date was substituted for the date of this Agreement throughout such representations and warranties, and each Seller shall have performed in all material respects all of the following conditions precedent:
(a) The Noteholders or their counsel shall have received a notice of closing (the “Notice of Closing”) in the form of Schedule 7.2(a) at least five Business Days covenants required to be performed by such Seller hereunder prior to the Closing;
(ii) No suit, action or other proceeding, or such shorter period as injunction, order, decree or judgment relating thereto, shall be threatened or shall be pending in which it is sought to restrain or prohibit or to obtain damages or other relief in connection with the Company transactions contemplated hereby or that would reasonably be expected to have a Material Adverse Effect, and no injunction, judgment, order, decree or ruling with respect thereto shall be in effect;
(iii) Buyers shall be satisfied, in their sole discretion, with an updated Schedule 1.2(c) of this Agreement to be delivered at the Required Noteholders Closing; and
(iv) Since the date hereof, there shall agreenot have occurred any material adverse change, including any litigation, in the business, assets, financial condition, results of operations or cash flows of the Sellers with respect to the Business.
(b) The Company shall have duly issued and delivered obligation of Sellers to such Noteholder or their counsel, take the actions set forth in accordance with ARTICLE II, Section 1 above are subject to the Amended Notes and New Warrants satisfaction as of the Closing of the following conditions; provided that any condition specified in this Section 7.4(b) may be waived if consented to be delivered to such Noteholder at the Closing.in writing by Sellers:
(c) Each of the Transaction Documents shall be in full force and effect and no term or condition thereof shall have been amended, waived or otherwise modified without the prior written consent of the Required Noteholders.
(di) The representations and warranties of the Company set forth contained in ARTICLE V Sections 5 hereof shall be true and correct as of the Closing with the same effect as though such representations and warranties had been made on in all material respects at and as of the Closing (except where any as though then made and as though the Closing Date was substituted for the date of this Agreement throughout such representation representations and warranty speaks by its terms as of a different date, in which case it shall be true and correct as of such date)warranties, and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect.
(e) The Company each Buyer shall have performed in all obligations material respects all of the covenants required to be performed by it at or such Buyer hereunder prior to the Closing under the Transaction Documents to Closing; and
(ii) No suit, action or other proceeding, or injunction, order, decree or judgment relating thereto, shall be threatened or shall be pending in which it is a party, and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect.
(f) No Default or Event of Default shall have occurred and be continuing.
(g) There is not any litigation or proceeding pending or threatened which seeks sought to restrain or invalidate the transactions contemplated by this Agreement.
(h) The Company shall have delivered, prohibit or caused to be delivered, to the Noteholders obtain damages or their counsel, all such other documents and agreements reasonably requested by the Noteholders relief in connection with the consummation of the transactions contemplated by this Agreementhereby or that would reasonably be expected to have a Material Adverse Effect, and no injunction, judgment, order, decree or ruling with respect thereto shall be in effect.
Appears in 1 contract
Conditions Precedent to the Closing. The obligations obligation of each Noteholder the Purchasers to consummate purchase the transactions contemplated Notes to be purchased by them hereunder on the Transaction Documents are Closing Date is subject to the satisfaction or waiver by the Required Noteholders on the Closing Date of each of the following conditions precedentconditions:
(a) The Noteholders or their counsel shall have received a notice of closing (the “Notice of Closing”) in the form of Schedule 7.2(a) at least five Business Days prior to the Closing, or such shorter period as the Company and the Required Noteholders shall agree.
(b) The Company shall have duly issued and delivered to such Noteholder or their counsel, in accordance with ARTICLE II, the Amended Notes and New Warrants to be delivered to such Noteholder at the Closing.
(c) Each of the Transaction Documents shall be in full force and effect and no term or condition thereof shall have been amended, waived or otherwise modified without the prior written consent of the Required Noteholders.
(d) The representations and warranties of made by the Company set forth in ARTICLE V herein shall be true and correct as of the Closing with the same effect as though such representations and warranties had been made in all material respects on and as of the Closing (except where any such representation Date and warranty speaks by its terms as of a different date, in which case it shall be true and correct as of such date), and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect.
(e) The Company shall have performed complied in all obligations material respects with all agreements as set forth in or contemplated hereunder and in the other Loan Documents, required to be performed by it at or prior to the Closing under the Transaction Documents to which it is a party, and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effectClosing.
(fb) No Default or Event As of Default shall have occurred the Closing Date, and be continuing.
(g) There is not any litigation or proceeding pending or threatened which seeks after giving effect to restrain or invalidate the transactions contemplated by this Agreement.
(h) The Company shall have delivered, or caused to be delivered, to the Noteholders or their counsel, all such other documents and agreements reasonably requested by the Noteholders in connection with the consummation of the transactions contemplated by this Agreement, there shall exist no Default or Event of Default.
(c) As to the Purchasers, the purchase of and payment for the Notes by the Purchasers hereunder (i) shall not be prohibited or enjoined (temporarily or permanently) by any applicable law or governmental regulation (including Regulation T, U or X of the Board of Governors of the Federal Reserve System), (ii) shall not subject the Purchasers to any penalty or other onerous condition under or pursuant to any applicable law or governmental regulation (provided, however, that such regulation, law or onerous condition was not in effect at the date of this Agreement), and (iii) shall be permitted by the laws and regulations of the jurisdictions to which they are subject.
(d) At the Closing, the Purchasers shall have received a certificate, dated the Closing Date, from the Company stating that the conditions specified in Sections 5.01(a), through (c) have been satisfied or duly waived as of the Closing Date.
(e) Each of the Loan Documents, except for this Agreement shall be substantially in the form attached hereto and the Loan Documents shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect.
(f) All proceedings taken in connection with the issuance of the Notes and the transactions contemplated by this Agreement, the other Loan Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Purchasers and their counsel. The Purchasers and their counsel shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(g) All reasonable costs and fees due and owing and expenses (including reasonable legal fees and expenses) required to be paid to or on behalf of the Purchasers on or prior to the Closing Date pursuant to this Agreement and all fees and expenses
Appears in 1 contract
Sources: Senior Subordinated Note Purchase Agreement (STC Broadcasting Inc)
Conditions Precedent to the Closing. 8.1 Conditions Precedent to the Buyer's and Shareholder's ----------------------------------------------------- Obligations to Close. The obligations obligation of each Noteholder the Buyer and Shareholder to enter into --------------------- this Agreement and to consummate the transactions contemplated by the Transaction Documents are hereby is subject to the satisfaction prior to or waiver by the Required Noteholders on the Closing Date of each of the following conditions precedentconditions; provided, however, that the Buyer and Shareholder shall have the right to waive all or any part of each such condition, and to close the transactions contemplated hereby without however, releasing the Seller, ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇ from any covenant, obligation, agreement or condition contained herein or from any liability for any loss or damage sustained by the Buyer or Shareholder by reason of the breach by the Seller, ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇ of any covenant, obligation, agreement or condition contained herein, by reason of any misrepresentation made by the Seller, ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇; and provided further, however, that the Buyer and Shareholder's participation in the Closing shall not in any way be deemed to be a waiver of any claim it may have hereunder for any breach of any representation, warranty, covenant or agreement:
(a) The Noteholders or their counsel shall have received a notice of closing (the “Notice of Closing”) in the form of Schedule 7.2(a) at least five Business Days prior to the Closing, or such shorter period as the Company and the Required Noteholders shall agree.
(b) The Company shall have duly issued and delivered to such Noteholder or their counsel, in accordance with ARTICLE II, the Amended Notes and New Warrants to be delivered to such Noteholder at the Closing.
(c) Each of the Transaction Documents shall be in full force and effect and no term or condition thereof shall have been amended, waived or otherwise modified without the prior written consent of the Required Noteholders.
(d) The representations and warranties of the Company set forth Seller, ▇▇▇▇▇▇▇ and the ▇▇▇▇▇▇▇▇ contained in ARTICLE V this Agreement shall have been true and correct when made and shall be true and correct in all material respects as of the Closing Date, with the same force and effect as though if made on the Closing Date, except for such representations and warranties had been as are made on and as of the Closing (except where any such representation and warranty speaks by its terms as of a different specific date, in which case it shall be true and correct in all material respects as of such date).
(b) The covenants and agreements of the Seller, ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇ and such Noteholder the Shareholder contained in this Agreement and required to be complied with or performed on or prior to the Closing Date shall have been complied with or performed in all respects.
(c) The Buyer and Shareholder shall have received a certificate signed on behalf of the Company Seller (the "Seller Secretary's Certificate") certifying the resolutions duly and validly adopted by an officer the Board of Directors of the Company Seller, their respective authorization of the execution and delivery of this Agreement and the other Transaction Documents to which the Seller is a party and the consummation of the transactions contemplated hereby and thereby, and the names and signatures of the officers of the Seller authorized to sign this Agreement and the other Transaction Documents.
8.2 Conditions Precedent to the Seller's Obligations to Close --------------------------------------------------------- The obligation of the Seller to consummate the transactions contemplated hereby is subject to the satisfaction prior to or on the Closing Date of each of the following conditions; provided, however, that the Seller shall have the right to waive all or any part of each such effectcondition, and to close the transactions contemplated hereby without however, releasing the Buyer from any covenant, obligation, agreement or condition contained herein or from any liability for any loss or damage sustained by the Seller by reason of the breach by the Buyer of any covenant, obligation, agreement or condition contained herein, by reason of any misrepresentation made by the Buyer; and provided further, however, that the Seller's participation in the Closing shall not in any way be deemed to be a waiver of any claim it may have hereunder for any breach of any representation, warranty, covenant or agreement:
(a) The representations and warranties of the Buyer, ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇ contained in this Agreement shall have been true and correct when made and shall be true and correct in all material respects as of the Closing Date, with the same force and effect as if made as of the Closing Date, other than such representations and warranties as are made as of a specific date, which shall be true and correct in all material respects as of such date.
(b) The covenants and agreements contained in this Agreement to be complied with by the Buyer on or before the Closing Date shall have been complied with in all material respects.
(c) The Seller shall have received a certificate of the Secretary of the Buyer (the "Buyer Secretary's Certificate") certifying the resolutions duly and validly adopted by the Buyer evidencing its authorization of the execution and delivery of this Agreement and the other Transaction Documents to which the Buyer is a party and the consummation of the transactions contemplated hereby and thereby, and the names and signatures of the officers of the Buyer authorized to sign this Agreement and the other Transaction Documents to be delivered hereunder.
(d) The form and substance of all certificates, opinions, consents, instruments and other documents delivered to the Seller under this Agreement shall be satisfactory in all reasonable respects to the Seller, the Shareholder and their counsel.
(e) The Company shall have performed all obligations required to be performed by it at or prior to the Closing under the Transaction Documents to which it is a party, Seller and such Noteholder Shareholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect.
(f) No Default or Event of Default shall have occurred and be continuing.
(g) There is not any litigation or proceeding pending or threatened which seeks to restrain or invalidate the transactions contemplated by this Agreement.
(h) The Company shall have delivered, or caused to be delivered, to the Noteholders or their counsel, all such other documents and agreements reasonably requested assumption agreement duly executed by the Noteholders Buyer, in connection with which the consummation Buyer agrees to assume the Assumed Liabilities, in the form of the transactions contemplated by this AgreementSchedule 8.2(f) attached hereto.
Appears in 1 contract
Conditions Precedent to the Closing. The All the obligations of each Noteholder to consummate the transactions contemplated by the Transaction Documents any Member under this Agreement are subject to the satisfaction fulfillment, at or waiver by the Required Noteholders on prior to the Closing Date Date, of each of the following conditions precedent:
(a) The Noteholders set forth below in this Section. Each Member shall use best efforts to procure that all such conditions are fulfilled at or their counsel shall have received a notice of closing (the “Notice of Closing”) in the form of Schedule 7.2(a) at least five Business Days prior to the ClosingClosing Date, provided, however that neither Member nor its Parent will prior to the Closing Date modify or amend any of the third-party agreements described in the following conditions to which such Member or its Parent is a party, or such shorter period as the will waive any of its rights AGRINOMICS LLC 15 Limited Liability Company and the Required Noteholders shall agree.
(b) The Company shall have duly issued and delivered to such Noteholder or their counselAgreement relating thereto, in accordance with ARTICLE II, the Amended Notes and New Warrants to be delivered to such Noteholder at the Closing.
(c) Each of the Transaction Documents shall be in full force and effect and no term or condition thereof shall have been amended, waived or otherwise modified without the prior written consent of the Required Noteholdersother Member, which consent shall not be unreasonably withheld.
(a) Each Member will have completed its due diligence and business review and such review shall have been satisfactory to such Member in its sole discretion.
(b) Neither Member shall have discovered any material error, misstatement or omission in the representations and warranties made by the other party in Article 8, it being agreed that either Member may require at Closing that it receive one or more written certifications and reaffirmations of such representations and warranties made by the other party.
(c) Subject to waiver of this condition in whole or in part by the other Member, each Member shall have performed and complied with all terms, covenants and conditions required by this Agreement prior to the Closing Date.
(d) The representations and warranties of the Company set forth in ARTICLE V No suit, action or proceeding against any Member shall be true and correct as of the Closing with the same effect as though such representations and warranties had been made on and as of the Closing (except where pending or threatened before any such representation and warranty speaks by its terms as of a different date, court or governmental agency in which case it shall be true and correct as of such date)suit, and such Noteholder shall have received a certificate signed on behalf of action or proceeding seeks to restrain or prohibit or to obtain damages or other relief in connection with this Agreement or the Company by an officer of the Company to such effecttransactions contemplated hereby.
(e) The Company Subject to waiver of this condition in whole or in part by the other Member, each Member shall have performed all obligations required to be performed by it at or prior delivered to the Closing under the Transaction Documents other Member such other instruments and documents as may be reasonably necessary to which it is a party, and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect.
(f) No Default or Event of Default shall have occurred and be continuing.
(g) There is not any litigation or proceeding pending or threatened which seeks to restrain or invalidate effectuate the transactions contemplated by this Agreement.
(hf) The Company All necessary notifications and filings, including the filing of the Certificate with the Secretary of State of the State of Delaware, required to be made in or with respect to any relevant country will have been made and all necessary governmental approvals, if any, shall have deliveredbeen received and the prescribed waiting periods will have expired or been terminated. No governmental entity shall have indicated its objection to, or caused its intent to be deliveredchallenge as violative of any federal, to the Noteholders state or their counselforeign laws, all such other documents and agreements reasonably requested by the Noteholders in connection with the consummation any of the transactions contemplated by this Agreement or any related documents. In the event a governmental entity places a condition on its approval of the transaction as contemplated by this Agreement or any related documents that has a material effect on the proposed business of the Company, the Members shall attempt to negotiate a mutually agreeable modification to this Agreement.
(g) Agritope and the Company shall have entered into, and duly executed and delivered, the Agritope Research and Management Contract.
(h) The transfer to ACTTAG, Inc. of Agritope's rights, interests, and obligations in, to, and under the Salk ACTTAG Research Agreement and the University of Edinburgh ACTTAG Research Agreement and the Existing Agritope Collection shall have validly taken place, with no adverse effects on any of these rights, interests and obligations by reason of such transfer, and RP Ag AGRINOMICS LLC 16 Limited Liability Company Agreement Co. shall have received evidence to its satisfaction of such valid transfer without any adverse effects.
(i) ACTTAG, Inc. and the Company shall have entered into, and duly executed and delivered, the Assignment and Assumption Agreement and RP Ag Co. shall have received evidence to its satisfaction that such Agreement has validly been entered into with no adverse effect on any rights, interests and obligations in, to and under the contracts and other assets, including without limitation the Salk ACTTAG Research Agreement and the University of Edinburgh ACTTAG Research Agreement and the Existing Agritope Collection.
(j) Subject to waiver of this condition in whole or in part by ACTTAG, Inc., RP Ag Co. and the Company shall have entered into, and duly executed and delivered, the RP Ag Co. Research Contract and License Agreement.
(k) Subject to waiver of this condition in whole or in part by ACTTAG, Inc., RP Ag Co. shall have paid to the Company, in readily available funds, RP Ag Co.'s Initial Capital Contribution, designated in Section 3.2.
Appears in 1 contract
Conditions Precedent to the Closing. 8.1 Conditions Precedent to MedSource's and the Transferee's Obligations to ----------------------------------------------------------------------- Close. The obligations obligation of each Noteholder MedSource and the Transferee to enter into this ----- Agreement and to consummate the transactions contemplated by the Transaction Documents are hereby is subject to the satisfaction prior to or waiver by the Required Noteholders on the Closing Date of each of the following conditions precedentconditions; provided, however, that the Transferee shall have the right to waive -------- ------- all or any part of each such condition and to close the transactions contemplated hereby without, however, releasing the Transferor or any Shareholder from any covenant, obligation, agreement or condition contained herein or from any liability for any loss or damage sustained by the Transferee by reason of the breach by the Transferor or any Shareholder of any covenant, obligation, agreement or condition contained herein or by reason of any misrepresentation made by the Transferor or any Shareholder; and provided -------- further, however, that MedSource's and the Transferee's participation in the ------- ------ Closing shall not in any way be deemed to be a waiver of any claim it may have hereunder for any breach of any representation, warranty, covenant or agreement:
(a) The Noteholders or their counsel shall have received a notice of closing (the “Notice of Closing”) in the form of Schedule 7.2(a) at least five Business Days prior to the Closing, or such shorter period as the Company and the Required Noteholders shall agree.
(b) The Company shall have duly issued and delivered to such Noteholder or their counsel, in accordance with ARTICLE II, the Amended Notes and New Warrants to be delivered to such Noteholder at the Closing.
(c) Each of the Transaction Documents shall be in full force and effect and no term or condition thereof shall have been amended, waived or otherwise modified without the prior written consent of the Required Noteholders.
(d1) The representations and warranties of the Company set forth Transferor and the Shareholders contained in ARTICLE V this Agreement shall have been true and correct in all material respects when made and shall be true and correct in all material respects as of the Closing Date, with the same force and effect as though if made on the Closing Date, except for such representations and warranties had been as are made on and as of the Closing (except where any such representation and warranty speaks by its terms as of a different specific date, in which case it shall be true and correct in all material respects as of such date), and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect.
(e2) The Company shall have performed all obligations covenants and agreements of the Transferor and the Shareholders contained in this Agreement and required to be complied with or performed by it at on or prior to the Closing under the Transaction Documents to which it is a party, and such Noteholder Date shall have been complied with or performed in all material respects.
(3) The Transferee shall have received (i) a certificate signed on behalf of dated the Company Closing Date and executed by an executive officer of the Company Transferor, and (ii) a certificate dated the Closing Date and executed by each of the Shareholders, in each case certifying the satisfaction of the conditions referred to such effectin sections 8.1(a) and (b).
(f4) No Default or Event of Default The Transferee shall have occurred received, each in form and be continuing.
(g) There is not any litigation or proceeding pending or threatened which seeks substance reasonably satisfactory to restrain or invalidate the transactions contemplated by this Agreement.
(h) The Company Transferee, all Consents of, and estoppel certificates and releases from, and shall have delivereddelivered all notices to, any Governmental Entity or caused to be delivered, to the Noteholders or their counsel, all such other documents and agreements reasonably requested by the Noteholders in connection with Person that is required for the consummation of the transactions contemplated hereby and for the Transferee to conduct and operate the Business, which Consents, notices and estoppel certificates are listed in Schedule 5.4(b) attached hereto and which releases are listed in Schedule 7.13.
(5) No event or events shall have occurred between the date hereof and the Closing Date which, individually or in the aggregate, have, or are reasonably likely to have, a material adverse effect on the Acquired Assets or the Business.
(6) The Transferee shall have received a certificate of the Transferor (the "Transferor Clerk's Certificate") certifying as to the articles of organization and bylaws of the Transferor and as to resolutions, duly and validly adopted by the Board of Directors and the Shareholders of the Transferor, evidencing its and their authorization of the execution and delivery of this Agreement and the other Transaction Documents to which the Transferor is a party and the consummation of the transactions contemplated hereby and thereby, and the names and signatures of the officers of the Transferor authorized to sign this Agreement and the other Transaction Documents.
(7) The Transferee shall have received all such documents and instruments including, without limitation, such deeds of transfer, title reports and property surveys with respect to the transfer of all legal rights in the real property to be transferred pursuant to this Agreement.
(8) The form and substance of all certificates, transfer documents, title reports, property surveys, deeds, opinions, consents, instruments, and other documents delivered to the Transferee under this Agreement shall be satisfactory in all reasonable respects to the Transferee and its counsel.
(9) MedSource and the Transferee shall have received from ▇▇▇▇▇▇ & Dodge LLP, counsel for the Transferor and the Shareholders, a legal opinion that is dated the Closing Date, customary for transactions of the type contemplated by this Agreement and reasonably satisfactory to MedSource and the Transferee.
(10) The Transferee shall have received from the Transferor at the Closing an affidavit of non-foreign status, in the form required by Section 1445 of the Code and the regulations thereunder, signed under penalties of perjury.
(11) The Transferee shall have received a copy of a Phase I Environmental Report and a Phase II Environmental Report relating to the Transferor's Real Property that shall be satisfactory in the sole judgment of the Transferee.
(12) The Transferee shall have received a ▇▇▇▇ of Sale, Assignment and Assumption Agreement, in the form of Exhibit 8.1(l) (the "▇▇▇▇ of Sale, Assignment and Assumption Agreement") attached hereto, duly executed by the Transferor, and a patent assignment in a form reasonably acceptable to the Transferee (the "Patent Assignment"), duly executed by the Transferor.
(13) The Transferee and its affiliates shall have received the financing required to fund the transactions hereunder and the transactions contemplated by the parties hereto on terms and conditions acceptable to the Transferee and its affiliates.
(14) The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Employment Agreement shall be in full force and effect.
Appears in 1 contract
Sources: Asset Contribution and Exchange Agreement (Medsource Technologies Inc)
Conditions Precedent to the Closing. The obligations effectiveness of each Noteholder to consummate the transactions contemplated by the Transaction Documents are this Agreement is subject to the satisfaction condition precedent that the Agent and each Lender shall be satisfied with, or waiver by the Required Noteholders Borrower shall have delivered to the Agent, as the case may be, on or before the Closing Date of each of Effective Date, the following conditions precedentin form, substance and dated as of a date satisfactory to the Lenders and their counsel and in sufficient quantities for each Lender:
(a) The Noteholders or their counsel this Agreement shall have received a notice of closing (been duly executed and delivered by the “Notice of Closing”) in the form of Schedule 7.2(a) at least five Business Days prior to the Closing, or such shorter period as the Company and the Required Noteholders shall agree.Borrower;
(b) The Company shall have duly issued completion of and delivered to satisfactory results with respect to, such Noteholder or their counselfinancial, in accordance with ARTICLE II, business and legal due diligence as reasonably requested by the Amended Notes and New Warrants to be delivered to such Noteholder at the Closing.Lenders;
(c) Each of the Transaction Documents shall be in full force and effect and no term Agent or condition thereof the Lenders shall have been amended, waived received the BHECHC Indenture and any other Loan Documents required by the Agent or otherwise modified without the prior written consent of Lenders duly executed by the Required Noteholders.Borrower;
(d) The representations the following documents in form, substance and warranties execution acceptable to the Agent shall have been delivered to the Agent:
(i) duly certified copies of the Company set forth in ARTICLE V shall be true and correct as constating documents of the Closing with the same effect as though such representations and warranties had been made on and as Borrower, all necessary resolutions of the Closing board of directors or similar necessary LEGAL_1:81779606.19 BMO – BNS - Berkshire –Credit Agreement proceedings taken and required to be taken by the Borrower to authorize the execution and delivery of this Agreement and the Loan Documents to which it is a party and the entering into and performance of the transactions contemplated herein and therein;
(except where any such representation and warranty speaks by its terms as ii) certificates of a different dateincumbency of the Borrower setting forth specimen signatures of the persons authorized to execute this Agreement, in which case it shall be true and correct as of such date), and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of Borrower and the Company to such effect.
(e) The Company shall have performed all obligations required to be performed by it at or prior to the Closing under the Transaction Loan Documents to which it is a party;
(iii) certificate of status or the equivalent relative to the Borrower under its jurisdiction of organization; and
(iv) the opinion of counsel for the Borrower in form and substance satisfactory to the Lenders;
(e) there not having occurred a Material Adverse Change since December 31, and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect.2022 ;
(f) No all fees payable on or before the date hereof in connection with the Credit Facility under this Agreement and any fee letter shall have been paid to the Agent; and
(g) there shall exist no Default or Event of Default shall have occurred and be continuingDefault.
(g) There is not any litigation or proceeding pending or threatened which seeks to restrain or invalidate the transactions contemplated by this Agreement.
(h) The Company shall have delivered, or caused to be delivered, to the Noteholders or their counsel, all such other documents and agreements reasonably requested by the Noteholders in connection with the consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Conditions Precedent to the Closing. 6.1 Conditions Precedent to MedSource's and the Transferee's Obligations to ----------------------------------------------------------------------- Close. The obligations of each Noteholder MedSource and the Transferee to enter into this ----- Agreement and to consummate the transactions contemplated by the Transaction Documents hereby are subject to the satisfaction prior to or waiver by the Required Noteholders on the Closing Date of each of the following conditions precedentconditions; provided, -------- however, that MedSource and the Transferee shall have the right to waive all or ------- any part of each such condition and to close the transactions contemplated hereby without, however, releasing any Transferor from any covenant, obligation, agreement or condition contained herein or from any liability for any loss or damage sustained by MedSource or the Transferee by reason of the breach by any Transferor of any covenant, obligation, agreement or condition contained herein or by reason of any misrepresentation made by such Transferor; and provided -------- further, however, that MedSource's and the Transferee's participation in the ------- ------- Closing shall not in any way be deemed to be a waiver of any claim either may have hereunder for any breach of any representation, warranty, covenant or agreement:
(a) The Noteholders or their counsel shall have received a notice of closing (the “Notice of Closing”) in the form of Schedule 7.2(a) at least five Business Days prior to the Closing, or such shorter period as the Company and the Required Noteholders shall agree.
(b) The Company shall have duly issued and delivered to such Noteholder or their counsel, in accordance with ARTICLE II, the Amended Notes and New Warrants to be delivered to such Noteholder at the Closing.
(c) Each of the Transaction Documents shall be in full force and effect and no term or condition thereof shall have been amended, waived or otherwise modified without the prior written consent of the Required Noteholders.
(d1) The representations and warranties of the Company set forth Transferors contained in ARTICLE V this Agreement shall have been true and correct when made and shall be true and correct in all material respects as of the Closing Date, with the same force and effect as though if made on the Closing Date, except for such representations and warranties had been as are made on and as of the Closing (except where any such representation and warranty speaks by its terms as of a different specific date, in which case it shall be true and correct in all material respects as of such date); provided, however, that if any -------- ------- representation or warranty is already qualified by materiality, for purposes of determining whether this condition has been satisfied, such representation or warranty as so qualified shall be true and such Noteholder correct in all respects.
(2) The covenants and agreements of the Transferors contained in this Agreement and required to be complied with or performed on or prior to the Closing Date shall have been complied with or performed in all respects.
(3) The Transferee shall have received a certificate signed dated the Closing Date and executed by each Transferor (the "Transferors' Certificate") certifying the satisfaction of the conditions referred to in sections 6.1(a) and (b).
(4) The Transferee shall have received, each in form and substance reasonably satisfactory to the Transferee, all Consents of, and estoppel certificates and releases from, and shall have delivered all notices to, any Governmental Entity or other Person that is required for the consummation of the transactions contemplated hereby and for the Transferee to own and operate the Company, which Consents, notices, estoppel certificates and releases are listed in Schedule 3.4(b) attached hereto, including without limitation such releases, termination statements and other documents as shall release the Company from any and all liabilities or obligations under the Company's promissory note to Old American Insurance Company dated August 28, 1998 and referred to in Schedule 3.10(a), from any and all Liens Old American Insurance Company may have on behalf any assets of the Company by an officer of and from any and all liabilities or obligations under the Company Company's promissory note to ▇▇▇▇▇▇▇▇▇ Limited Partnership dated April 30, 1989 and referred to in such effectSchedule.
(e5) No event or events shall have occurred between the date hereof and the Closing Date which, individually or in the aggregate, have, or are reasonably likely to have, a Material Adverse Effect.
(6) The form and substance of all certificates, opinions, consents, instruments, and other documents delivered to the Transferee under this Agreement shall be satisfactory in all reasonable respects to the Transferee and its counsel.
(7) The Company shall have performed closed on the sale of all obligations required to be performed by it of its interest in the building and land at or prior to the Closing under Location in accordance with the Transaction Documents to which it is a party, and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effectterms set forth in Schedule 3.10(a).
(f) No Default or Event of Default shall have occurred and be continuing.
(g) There is not any litigation or proceeding pending or threatened which seeks to restrain or invalidate the transactions contemplated by this Agreement.
(h) 8) The Company shall have deliveredentered into the Amended and Restated Leases.
(9) MedSource and the Transferee shall have received from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. an opinion dated the Closing Date in the form of Exhibit 6.1(i) attached hereto.
(10) The Transferee shall have received from each Transferor at the Closing a certificate of non-foreign status, in the form required by Section 1445 of the Code and the regulations thereunder.
(11) There shall be no order, decree or caused to be delivered, to the Noteholders injunction of a court of competent jurisdiction or their counsel, all such other documents and agreements reasonably requested by the Noteholders in connection with Governmental Entity that prevents the consummation of the transactions contemplated by this Agreement or Proceeding that threatens to prevent such transactions.
(12) MedSource and the Transferee shall have obtained the financing required to fund the contribution and exchange hereunder and the transactions contemplated by the parties hereto on terms and conditions acceptable to MedSource and the Transferee.
(13) Each of the Employment Agreements and the ▇▇▇▇▇▇▇▇▇ Non-competition Agreement shall be in full force and effect.
(14) The Transferee shall have obtained a tax, lien and judgment search, which search shall be conducted at no cost to the Transferors, of the Company showing no items not disclosed in the schedules to this Agreement.
(15) The Plan Termination Agreements shall be in full force and effect.
Appears in 1 contract
Sources: Stock Contribution and Exchange Agreement (Medsource Technologies Inc)
Conditions Precedent to the Closing. The obligations effectiveness of each Noteholder to consummate the transactions contemplated by the Transaction Documents are this Agreement is subject to the satisfaction condition precedent that the Agent and each Lender shall be satisfied with, or waiver by the Required Noteholders Borrower shall have delivered to the Agent, as the case may be, on or before the Closing Date of each of Effective Date, the following conditions precedentin form, substance and dated as of a date satisfactory to the Lenders and their counsel and in sufficient quantities for each Lender:
(a) The Noteholders or their counsel this Agreement shall have received a notice of closing (been duly executed and delivered by the “Notice of Closing”) in the form of Schedule 7.2(a) at least five Business Days prior to the Closing, or such shorter period as the Company Borrower and the Required Noteholders shall agree.General Partner;
(b) The Company shall have duly issued completion of and delivered to satisfactory results with respect to, such Noteholder or their counselfinancial, in accordance with ARTICLE II, business and legal due diligence as reasonably requested by the Amended Notes and New Warrants to be delivered to such Noteholder at the Closing.Lenders;
(c) Each receipt of a duly executed 2020 Supplemental Indenture, Senior Pledged Bond, Series 4 and Bond Delivery Agreement and any other documents, certificates or other deliveries required under Section 2.4 of the Transaction Documents shall be in full force and effect and no term or condition thereof shall have been amended, waived or otherwise modified without the prior written consent of the Required Noteholders.Master Trust Indenture;
(d) The representations and warranties of the Company set forth in ARTICLE V shall be true and correct as of Agent or the Closing with the same effect as though such representations and warranties had been made on and as of the Closing (except where any such representation and warranty speaks by its terms as of a different date, in which case it shall be true and correct as of such date), and such Noteholder Lenders shall have received any other Loan Documents required by the Agent or the Lenders duly executed by the Borrower and the General Partner, as the case may be;
(e) the following documents in form, substance and execution acceptable to the Agent shall have been delivered to the Agent:
(i) duly certified copies of the constating documents of the Borrower and the General Partner, all necessary resolutions of the board of directors or similar necessary proceedings taken and required to be taken by the Borrower to authorize the execution and delivery of this Agreement and the Loan Documents to which it is a certificate signed party and the entering into and performance of the transactions contemplated herein and therein;
(ii) certificates of incumbency of the General Partner setting forth specimen signatures of the persons authorized to execute this Agreement, on behalf of the Company by an officer of Borrower and the Company to such effect.
(e) The Company shall have performed all obligations required to be performed by it at or prior to the Closing under the Transaction Loan Documents to which it is a party, ;
(iii) certificate of status or the equivalent relative to the Borrower and such Noteholder shall have received a certificate signed on behalf the General Partner under its jurisdiction of creation; and
(iv) the Company by an officer opinion of counsel for the Company Borrower in form and substance satisfactory to such effect.the Lenders;
(f) No there not having occurred a Material Adverse Change since December 31, 2019;
(g) the Upfront Fee and all other fees payable on or before the date hereof in connection with the Credit Facility under this Agreement and any fee letter (if any) shall have been paid to the Agent; and
(h) there shall exist no Default or Event of Default shall have occurred and be continuingDefault.
(g) There is not any litigation or proceeding pending or threatened which seeks to restrain or invalidate the transactions contemplated by this Agreement.
(h) The Company shall have delivered, or caused to be delivered, to the Noteholders or their counsel, all such other documents and agreements reasonably requested by the Noteholders in connection with the consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Conditions Precedent to the Closing. The obligations Closing is expressly contingent on (i) payment by the Subscriber and other subscribers (the “Other Subscribers”) of each Noteholder the Purchase Price, which payments shall be made to consummate the transactions contemplated escrow account maintained by Guzov Ofsink, LLC (the “Escrow Agent”) to be held in escrow pending the Closing, (ii) delivery by the Subscriber to the Escrow Agent of fully executed copies of the Transaction Documents are subject (as defined in Section 4(c) below), (iii) delivery by the Company to the satisfaction or waiver by Escrow Agent of fully executed copies of the Required Noteholders Transaction Documents (as defined in Section 4(c) below), (iv) the truth and accuracy, on the Closing Date of each of the following conditions precedent:
(a) The Noteholders or their counsel shall have received a notice of closing (the “Notice of Closing”) in the form of Schedule 7.2(a) at least five Business Days prior to the Closing, or such shorter period as the Company and the Required Noteholders shall agree.
(b) The Company shall have duly issued and delivered to such Noteholder or their counsel, in accordance with ARTICLE II, the Amended Notes and New Warrants to be delivered to such Noteholder at the Closing.
(c) Each of the Transaction Documents shall be in full force and effect and no term or condition thereof shall have been amended, waived or otherwise modified without the prior written consent of the Required Noteholders.
(d) The representations and warranties of the Company set forth and the Subscriber contained in ARTICLE V shall be true this Agreement and correct the Other Subscribers contained in the subscription agreements executed by the Other Subscribers (the “Other Subscription Agreements”), (v) the delivery by the Company to the Subscriber on the Closing Date of a certificate signed by the Company’s chief executive officer (1) representing the truth and accuracy of all the representations and warranties made by the Company contained in this Agreement and the Other Subscription Agreements, as of the Closing with the same effect Date, as though if such representations and warranties had been were made and given on and as of the Closing (except where any such representation and warranty speaks by its terms as of a different date, except for changes that will not have alone, or in which case it shall be true and correct any combination in the aggregate, a Material Adverse Effect (as defined in Section 4(a) of such datethis Agreement), and such Noteholder shall have received a certificate signed (2) certifying that on behalf of or before the Company by an officer of Closing Date the Company to such effect.
(e) The Company shall have performed all obligations covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed by it at the Company on or prior before the Closing Date; and (vi) a legal opinion of the Company’s legal counsel materially the same as the legal opinion referred to in Section 5 of this Agreement shall be delivered to the Subscriber on the Closing under the Transaction Documents Date in relation to which it is a party, and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of and the Company to such effectPurchased Shares (“Closing Legal Opinion”).
(f) No Default or Event of Default shall have occurred and be continuing.
(g) There is not any litigation or proceeding pending or threatened which seeks to restrain or invalidate the transactions contemplated by this Agreement.
(h) The Company shall have delivered, or caused to be delivered, to the Noteholders or their counsel, all such other documents and agreements reasonably requested by the Noteholders in connection with the consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Subscription Agreement (CHINA INFRASTRUCTURE CONSTRUCTION Corp)
Conditions Precedent to the Closing. The obligations effectiveness of each Noteholder to consummate the transactions contemplated by the Transaction Documents are this Agreement is subject to the satisfaction condition precedent that the Agent and each Lender shall be satisfied with, or waiver by the Required Noteholders Borrower shall have delivered to the Agent, as the case may be, on or before the Closing Date of each of Effective Date, the following conditions precedentin form, substance and dated as of a date satisfactory to the Lenders and their counsel and in sufficient quantities for each Lender:
(a) The Noteholders or their counsel this Agreement shall have received a notice of closing (been duly executed and delivered by the “Notice of Closing”) in the form of Schedule 7.2(a) at least five Business Days prior to the Closing, or such shorter period as the Company Borrower and the Required Noteholders shall agree.General Partner;
(b) The Company shall have duly issued completion of and delivered to satisfactory results with respect to, such Noteholder or their counselfinancial, in accordance with ARTICLE II, business and legal due diligence as reasonably requested by the Amended Notes and New Warrants to be delivered to such Noteholder at the Closing.Lenders;
(c) Each of the Transaction Documents shall be in full force and effect and no term Agent or condition thereof the Lenders shall have been amendedreceived any other Loan Documents required by the Agent or the Lenders duly executed by the Borrower and the General Partner, waived or otherwise modified without as the prior written consent of the Required Noteholders.case may be;
(d) The representations the following documents in form, substance and warranties execution acceptable to the Agent shall have been delivered to the Agent:
(i) duly certified copies of the Company set forth in ARTICLE V shall be true and correct as constating documents of the Closing with Borrower and the same effect as though such representations and warranties had been made on and as General Partner, all necessary resolutions of the Closing board of directors or similar necessary proceedings taken and required to be taken by the Borrower to authorize the execution and delivery of this Agreement and the Loan Documents (except where any such representation excluding Loan Documents executed and warranty speaks by its terms as delivered prior to the date hereof pursuant to the Existing Credit Agreement) to which it is a party and the entering into and performance of a different datethe transactions contemplated herein and therein;
(ii) certificates of incumbency of the General Partner setting forth specimen signatures of the persons authorized to execute this Agreement, in which case it shall be true and correct as of such date), and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of Borrower and the Company to such effect.
(e) The Company shall have performed all obligations required to be performed by it at or prior to the Closing under the Transaction Loan Documents to which it is a party;
(iii) certificate of status or the equivalent relative to the Borrower and the General Partner under its jurisdiction of creation; and
(iv) the opinion of counsel for the Borrower in form and substance satisfactory to the Lenders;
(e) there not having occurred a Material Adverse Change since September 30, and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect.2019;
(f) No all fees payable on or before the date hereof in connection with the Credit Facility under this Agreement and any fee letter shall have been paid to the Agent; and
(g) there shall exist no Default or Event of Default shall have occurred and be continuingDefault.
(g) There is not any litigation or proceeding pending or threatened which seeks to restrain or invalidate the transactions contemplated by this Agreement.
(h) The Company shall have delivered, or caused to be delivered, to the Noteholders or their counsel, all such other documents and agreements reasonably requested by the Noteholders in connection with the consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Conditions Precedent to the Closing. The obligations of each Noteholder to consummate the transactions contemplated by the Transaction Documents are subject to the satisfaction or waiver by the Required Noteholders on the Closing Date of (a) Only if each of the following conditions precedent(the “Conditions Precedent to the Closing”) is satisfied or waived by the Investor in writing on or prior to the Closing Date shall the Investor be obligated to pay the Purchase Price:
(ai) The Noteholders or their counsel Guarantors shall have received a notice of closing (performed or complied with the “Notice of Closing”) in Transitional Obligations and the form of Schedule 7.2(a) at least five Business Days covenants, obligations and agreements required to be performed or complied with by it on or prior to the ClosingClosing Date hereunder, and the representations, warranties and covenants made by the Guarantors and the Project Company in this Agreement remain true, accurate, complete and not misleading as from the Execution Date of this Agreement to the Closing Date, without any necessary material facts omitted;
(ii) There are no Laws, regulations, or such shorter period as judgments, awards, rulings or injunctions of competent courts or governmental authorities restraining, prohibiting or annulling the Company and Transaction, nor are there any pending or potential litigation, arbitration, judgments, awards, rulings or injunctions that have had or will have adverse effect on the Required Noteholders shall agree.Target Company;
(biii) The Company shall have duly issued and delivered to such Noteholder or their counsel, in accordance with ARTICLE II, the Amended Notes and New Warrants to be delivered to such Noteholder at the Closing.
(c) Each of the Transaction Documents shall have been duly and validly executed by the Parties, this Agreement continues to be in full force and effect and no term or condition thereof on the Closing Date; Each of the Original Shareholders shall have been amended, waived performed and complied with all covenants and obligations contained in this Agreement that are required to be performed or otherwise modified without complied with by it on or prior to the prior written consent of the Required Noteholders.Closing Date in all respects;
(div) The representations and warranties of made by the Target Company set forth and the Guarantors in ARTICLE V Article 5 hereof shall be true remain true, complete and correct as of accurate, the Closing with Target Company and the same effect as though such representations and warranties had been made on and as of the Closing (except where any such representation and warranty speaks by its terms as of a different date, in which case it shall be true and correct as of such date), and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect.
(e) The Company Guarantors shall have performed all obligations the covenants required by the Transaction Documents to be performed by it at on or prior to the Closing under Date, and there shall have been no violation of the Transaction Documents to which it is a party, Documents;
(v) All internal approvals and such Noteholder shall have received a certificate signed on behalf authorizations necessary for the execution or performance of this Agreement or the consummation of this Transaction by each of the Company by an officer of Original Shareholders and the Company to such effect.
(f) No Default or Event of Default shall have occurred and be continuing.
(g) There is not any litigation or proceeding pending or threatened which seeks to restrain or invalidate the transactions contemplated by this Agreement.
(h) The Target Company shall have deliveredbeen made or obtained and shall remain in full force and effect;
(vi) All external approvals, authorizations, notification obligations and other matters necessary for the execution or caused to be delivered, to the Noteholders performance of this Agreement or their counsel, all such other documents and agreements reasonably requested by the Noteholders in connection with the consummation of this Transaction by each of the transactions contemplated Original Shareholders and the Target Company shall have been made or obtained;
(vii) There shall be no applicable Laws or actions of governmental authorities restricting, prohibiting or annulling the Transaction;
(viii) All assets, licenses and permits, the Founder and the Management Team necessary for the business operation of the Project Company shall be fully preserved and retained until the Closing Date;
(ix) From the date hereof to the date on which the Closing is completed, there shall be no Material Adverse Change to the Project Company, and no matter having or can be reasonably expected to occur which may have material adverse effect on the business operation, equity structure, finance, management and legal status of the Project Company;
(x) The shareholders’ meeting and the board of directors of the Target Company shall have adopted resolutions unanimously approving the transaction and the execution of transaction documents;
(xi) The Founder and the Management Team shall have entered into a labor contract with the Project Company to the satisfaction of the Investor (including confidentiality, non-compete and Intellectual Property protection clauses), the term of which shall not be less than five (5) years from the expiration of the Performance Undertaking Period and the non-compete period shall be five (5) years after the departure from the Company; the Parties acknowledge that the compensation for the Founder and the Management Team during the non-compete period has been included in the purchase price, so no compensation shall be paid to them in accordance with other agreements or provisions if the Investor or the Target Company requests them to perform the non-compete obligation. If the Investor or the Target Company is required to pay non-compete compensation in accordance with relevant provisions of Laws, the Guarantors shall jointly and severally return to the Investor the equity purchase price in the amount equal to the non-compete compensation;
(xii) ▇▇ ▇▇▇, Suzhou Quanchuan Investment Partnership (Limited Partnership) and Beijing Hydrogen Data Information Technology Co., Ltd. have entered into the Tripartite Agreement and the Equity Transfer Agreement on February 14, 2023, and Suzhou Quanchuan Investment Partnership (Limited Partnership) has transferred its equity interest in the registered capital of the Target Company to Qu Wei, and there is no dispute or potential dispute;
(xiii) The Investor has completed due diligence (including, without limitation, audit, legal due diligence and business due diligence) of the Project Company, and the Investor is satisfied with the results of such due diligence;
(xiv) The Target Company shall repay all borrowings from its Affiliates prior to the First Closing, and the investment funds paid by this Agreementthe Investor to the Target Company shall not be used to repurchase the equity interest held by the Target Company through financing, investment or otherwise in the Target Company prior to the completion of the First Closing; and
(xv) Except for matters disclosed in the Disclosure Letter attached hereto as Appendix 4, the Original Shareholders shall be jointly and severally liable for the repayment of all material liabilities of the Project Company that have been incurred. If such liabilities have been repaid by the Investor or the Project Company, the Guarantors shall jointly and severally pay the Investor or the Project Company all relevant amounts after the receipt of notice from the Investor; if overdue, the Guarantors shall bear liabilities of breach to the Investor in the amount of 0.02% of the total payable amount for each day of delay; if overdue for more than 15 calendar days, the Investor shall have the right to request the Guarantors to bear the liabilities of breach in the amount of 20% of the total payable amount.
Appears in 1 contract
Conditions Precedent to the Closing. (a) The obligations obligation of each Noteholder the Purchasers to consummate purchase the transactions contemplated by the Transaction Documents are Notes and Warrants shall be subject to the satisfaction or waiver by the Required Noteholders on the Closing Date satisfaction, and continuing existence, of each of the following conditions precedent, in a manner otherwise in form and substance acceptable to Purchaser in their sole and absolute discretion, on the Closing Date:
(a) The Noteholders or their counsel shall have received a notice of closing (the “Notice of Closing”) in the form of Schedule 7.2(a) at least five Business Days prior to the Closing, or such shorter period as the Company and the Required Noteholders shall agree.
(bi) The Company shall have duly issued and delivered the Notes and Warrants to such Noteholder or their counselthe Purchasers, and the Purchasers shall have received a counterpart of this Agreement and of each of the other Purchaser Documents, duly executed by each party thereto;
(ii) The Purchasers shall have received the executed legal opinion of counsel to the Company, dated the Closing Date, in accordance with ARTICLE II, the Amended Notes and New Warrants to be delivered to such Noteholder at the Closing.form attached hereto as Exhibit G;
(ciii) Each The Purchasers shall have received all closing certificates, corporate documents, evidence of authorization, and other agreements, instruments and documents in respect of the Transaction Documents shall be in full force and effect and no term or condition thereof shall have been amended, waived or otherwise modified without transactions contemplated hereby as the prior written consent of the Required Noteholders.Purchasers may reasonably request;
(div) The representations and warranties of made by the Company set forth in ARTICLE V the Purchaser Documents to which it is a party shall be true and correct as of the Closing with the same effect as though such representations and warranties had been made on and in all respects as of the Closing (except where any such representation for representations that speak to prior periods);
(v) All consents necessary to the consummation of the Transactions shall have been obtained, and warranty speaks by its terms as all conditions precedent to the consummation of a different date, in which case it the Transactions shall have been or shall be true satisfied or waived prior to or concurrently with the issuance and correct as sale of such date)the Notes and Warrants;
(vi) All Transactions shall have been or shall be consummated pursuant to the terms of the applicable Purchaser Documents prior to or concurrently with the issuance and sale of the Notes and Warrants, and such Noteholder in compliance in all material respects with all applicable laws;
(vii) True, correct and complete execution copies of all Purchaser Documents shall have been delivered to the Purchasers;
(viii) The Purchasers shall have received copies of UCC, tax, lien and judgment search reports;
(ix) The Purchasers shall have received copies of a certificate signed duly executed payoff letter, in form and substance satisfactory to the Purchasers, by and between all parties to each of the Existing Over-Collateralization Loan Facilities for the related amounts listed on behalf Exhibit F, evidencing repayment in full of all existing obligations of the Company by an officer thereunder, together with (a) forms UCC-3 or other appropriate termination statements releasing all liens of the secured party in connection with each of the Existing Over-Collateralization Loan Facilities upon any of the personal property of the Company to such effect.and its Subsidiaries, and (b) termination of all blocked account agreements, bank agency agreements or other similar agreements or arrangements or arrangements in favor of each secured party in connection with each Over-Collateralization Loan Facility;
(ex) The Purchasers shall have received certificates of insurance, in form and substance reasonably satisfactory to the Purchasers, evidencing compliance with the requirements of Section 6.7(b) (including without limitation the requirement that such insurance name the Purchasers as an additional insured and loss payee);
(xi) The Company shall have performed all obligations required paid the Transaction Expenses to the Purchasers;
(xii) The Company shall have paid to the Purchasers a structuring fee in the amount of $900,000 (the “Structuring Fee”), which fee shall be deemed to be performed earned in full and non-refundable;
(xiii) The Purchasers shall have received duly executed originals of a letter of direction from the Company addressed to the Purchasers, with respect to the disbursement on the Closing Date of the proceeds of sale of the Notes together with a funds flow statement, each in form and substance as shall be satisfactory to the Purchasers;
(xiv) The Purchasers shall have received duly executed originals of the Security Agreement (the “Security Agreement”) in the form attached hereto as Exhibit H or counterparts thereof, dated the Closing Date, and all instruments, documents and agreements executed pursuant thereto shall have been delivered to the Purchasers;
(xv) The Purchasers shall have received duly executed originals of (a) the Pledge Agreement (the “Pledge Agreement”), in the form attached hereto as Exhibit I accompanied by it at (as applicable) (i) share certificates representing all of the outstanding Capital Stock, if certificated, being pledged pursuant to such Pledge Agreement and stock powers for such share certificates executed in blank and (ii) originals of any intercompany notes then existing and other instruments evidencing Indebtedness being pledged pursuant to such Pledge Agreement, duly endorsed in blank, shall have been delivered to the Purchasers and (b) each “Negative Pledge Agreement” executed by (i) the Parent and (ii) the Company, each in favor of the Purchasers;
(xvi) The Purchasers shall have received (i) evidence satisfactory thereto that they have a valid and perfected first priority security interest in all assets of the Company (subject to certain exceptions as more fully described in the Security Agreement) and the Capital Stock of its Subsidiaries and a second priority security interest in residual interests of certain SPEs of the Company related to the existing Securitizations, including (A) such documents duly executed by the Company and each Subsidiary (including financing statements under the UCC and other applicable documents under the laws of any jurisdiction with respect to the perfection of Liens) as the Purchasers may request in order to perfect their security interests in the Collateral, as applicable and (B) copies of UCC search reports listing all effective financing statements that name the Company or any Subsidiary as debtor, together with copies of such financing statements, none of which shall cover the Collateral, as applicable, except for Permitted Liens; and (ii) control letters from all issuers of uncertificated securities and financial assets held by the Company or any Subsidiary, all securities intermediaries with respect to all securities accounts and securities entitlements of the Company or any Subsidiary, and all futures commission agents and clearing houses with respect to all commodities contracts and commodities accounts held by the Company or any Subsidiary;
(xvii) The Company shall have consolidated net loan charge-offs in an amount not in excess of $250,000 for the most recently completed twelve (12) months, measured as of September 30, 2006. On or prior to the Closing under Date, the Transaction Documents to which it is a party, and such Noteholder shall have received a certificate signed on behalf Chief Financial Officer of the Company by an officer shall provide a certificate to the Purchasers, certifying the amount of the Company to such effect.charge-offs and that such amounts were determined in accordance with GAAP;
(f) No Default or Event of Default shall have occurred and be continuing.
(g) There is not any litigation or proceeding pending or threatened which seeks to restrain or invalidate the transactions contemplated by this Agreement.
(hxviii) The Company shall have deliveredconsolidated Adjusted EBITA of not less than $6,665,000 for the trailing twelve calendar months, measured as of September 30, 2006. On or caused prior to the Closing Date, the Chief Financial Officer of the Company shall provide a certificate to the Purchasers, certifying (a) as to the accuracy of such consolidated Adjusted EBITA, (b) that such Adjusted EBITA was determined in accordance with GAAP, and (c) that such officer has no reason to believe that the Company’s consolidated Adjusted EBITA for the twelve-month period ending as of the end of the month during which the Closing Date occurs will be less than the minimum described in the first sentence of this Section 5.1(a)(xviii);
(xix) The Company shall furnish the Purchasers with evidence showing the Total Leverage Ratio of not more than 9.7:1.0 for the trailing twelve (12) calendar months, measured as of the most recently reported month end of the Company (but prepared as if the Transactions had occurred), such evidence to be delivered, satisfactory to the Noteholders Purchasers;
(xx) The Purchasers shall be satisfied in their sole discretion with their due diligence investigation of the Company and its Subsidiaries, including, without limitation, the satisfactory completion of a Collateral audit and appraisals by the Purchasers and/or their representatives and there shall not exist in the Purchasers’ sole discretion (A) any event or their condition that has had or would have a Material Adverse Effect or (B) any adverse change in any material customer or vendor relationship or any law or regulation which, in the opinion of the Purchasers’ counsel, all such other documents and agreements reasonably requested prevents or prohibits the sale of the Notes to be sold on the Closing Date or which would adversely affect the economic benefits expected to be realized by the Noteholders Purchasers herein or in connection any other Purchaser Document;
(xxi) The Company shall have delivered to the Purchaser duly executed tri-party blocked account agreements, satisfactory to the Purchasers, with the banks as listed on Schedule 4.32;
(xxii) The Company shall have delivered to the Purchasers true and correct copies of the Securitization Documents as set forth on Schedule 4.21;
(xxiii) The Company shall have delivered to the Purchasers an executed copy of a VCOC letter (the “VCOC Letter”) which shall be satisfactory to the Purchasers;
(xxiv) The Company shall have delivered to the Purchasers an executed copy of the Affiliate Subordination Agreement (the “Affiliate Subordination Agreement”), executed by the Parent and which shall be satisfactory to the Purchasers;
(xxv) The Company shall have delivered to the Purchasers (A) a certificate of the Chief Financial Officer of the Company certifying the then outstanding amount of all Indebtedness due and owing to the Parent by the Company immediately prior to the Closing Date which shall not exceed the amount of $7,500,000 (the “Parent Indebtedness”) and (B) evidence that the Parent Indebtedness shall have been converted into an equity investment in the Company in an amount equal thereto (the “Parent Investment”), on terms which shall be satisfactory to the Purchasers;
(xxvi) Immediately prior to the Closing Date and after the consummation of the transactions contemplated Parent Investment (A) the Company shall have extended to the Parent an advance equal to the Parent Investment and (B) the Parent shall have executed and delivered a promissory note to the Company in an aggregate amount equal to such advance (the “Parent Promissory Note”), which Parent Promissory Note shall (A) have a maturity date of not earlier than the Maturity Date hereunder, (b) provide for repayment of principal in equal monthly installments calculated on the basis of straight-line amortization, (C) bear interest at a rate equal to the Prime Rate plus three hundred fifty (350) basis points per annum, (D) be unsecured in all respects, (E) be guaranteed by this AgreementBrooke Franchise Corporation, by a guaranty of payment agreement in form and substance acceptable to the Purchasers, and (D) be pledged to the Purchasers by the Company by physical delivery thereto on the Closing Date together with an allonge executed in blank; and
(xxvii) The Company shall have delivered to the Purchasers an executed copy of a post-closing letter (the “Post-Closing Letter”) which shall be satisfactory to the Purchasers.
Appears in 1 contract
Conditions Precedent to the Closing. The obligations effectiveness of each Noteholder to consummate the transactions contemplated by the Transaction Documents are this Agreement is subject to the satisfaction condition precedent that the Agent and each Lender shall be satisfied with, or waiver by the Required Noteholders Borrower shall have delivered to the Agent, as the case may be, on or before the Closing Date of each of Effective Date, the following conditions precedentin form, substance and dated as of a date satisfactory to the Lenders and their counsel and in sufficient quantities for each Lender:
(a) The Noteholders or their counsel this Agreement shall have received a notice of closing (been duly executed and delivered by the “Notice of Closing”) in the form of Schedule 7.2(a) at least five Business Days prior to the Closing, or such shorter period as the Company Borrower and the Required Noteholders shall agree.General Partner;
(b) The Company shall have duly issued completion of and delivered to satisfactory results with respect to, such Noteholder or their counselfinancial, in accordance with ARTICLE II, business and legal due diligence as reasonably requested by the Amended Notes and New Warrants to be delivered to such Noteholder at the Closing.Lenders;
(c) Each of the Transaction Documents shall be in full force and effect and no term Agent or condition thereof the Lenders shall have been amendedreceived any other Loan Documents required by the Agent or the Lenders duly executed by the Borrower and the General Partner, waived or otherwise modified without as the prior written consent of the Required Noteholders.case may be;
(d) The representations the following documents in form, substance and warranties execution acceptable to the Agent shall have been delivered to the Agent:
(i) duly certified copies of the Company set forth in ARTICLE V shall be true and correct as constating documents of the Closing with Borrower and the same effect as though such representations and warranties had been made on and as General Partner, all necessary resolutions of the Closing board of directors or similar necessary proceedings taken and required to be taken by the Borrower to authorize the execution and delivery of this Agreement and the Loan Documents (except where any such representation excluding Loan Documents executed and warranty speaks by its terms as delivered prior to the date hereof pursuant to the Existing Credit Agreement) to which it is a party and the entering into and performance of a different datethe transactions contemplated herein and therein;
(ii) certificates of incumbency of the General Partner setting forth specimen signatures of the persons authorized to execute this Agreement, in which case it shall be true and correct as of such date), and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of Borrower and the Company to such effect.
(e) The Company shall have performed all obligations required to be performed by it at or prior to the Closing under the Transaction Loan Documents to which it is a party;
(iii) certificate of status or the equivalent relative to the Borrower and the General Partner under its jurisdiction of creation; and
(iv) the opinion of counsel for the Borrower in form and substance satisfactory to the Lenders;
(e) there not having occurred a Material Adverse Change since September 30, and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect.2010;
(f) No all fees payable on or before the date hereof in connection with the Credit Facility under this Agreement and any fee letter shall have been paid to the Agent;
(g) there shall exist no Default or Event of Default shall have occurred and be continuing.
(g) There is not any litigation or proceeding pending or threatened which seeks to restrain or invalidate the transactions contemplated by this Agreement.Default; LEGAL_1:22094689.5
(h) The Company the Agent and Lenders shall have deliveredreceived confirmation that the Senior Bonds, or caused to be delivered, to the Noteholders or their counsel, all such other documents Series 09-1 have a minimum rating of BBB- from S&P and agreements reasonably requested by the Noteholders in connection with the consummation of the transactions contemplated by this AgreementBBB from DBRS.
Appears in 1 contract
Conditions Precedent to the Closing. The obligations obligation of each Noteholder the Investors to consummate purchase and pay for their respective Preferred Shares at the transactions contemplated by the Transaction Documents are Closing is subject to the satisfaction or waiver by the Required Noteholders on the Closing Date of each of the following conditions precedent:
(a) The Noteholders All proceedings to have been taken and all waivers and consents to be obtained in connection with the transactions contemplated by this Agreement shall have been taken or obtained, and all documents incidental thereto shall be satisfactory to the Investors and its counsel, and the Investors and their respective counsel shall have received a notice copies (executed or certified, as may be appropriate) of closing (all documents which the “Notice of Closing”) investor or counsel may reasonably have requested in the form of Schedule 7.2(a) at least five Business Days prior to the Closing, or connection with such shorter period as the Company and the Required Noteholders shall agreetransactions.
(b) The Company All legal matters incident to the purchase of the Preferred Shares shall be satisfactory to the respective Investor's counsel, and the Investors shall have duly issued received from Squadron, Ellenoff, Plesent & Shei▇▇▇▇▇, ▇▇P, counsel for the Corporation, such firm's opinion addressed to the Investors and delivered to such Noteholder or their counsel, dated the date of the Closing in accordance with ARTICLE II, substantially the Amended Notes and New Warrants to be delivered to such Noteholder at the Closingform of Exhibit D hereto.
(c) Each All consents, permits and approvals, qualifications and/or registrations required to be obtained or effected under any applicable securities or "Blue Sky" laws of the Transaction Documents shall be in full force and effect and no term or condition thereof any jurisdiction shall have been amendedobtained or effected, waived and the Investors shall have received from Squadron, Ellenoff, Plesent & Shei▇▇▇▇▇, ▇▇P a Blue Sky Memorandum or otherwise modified without the prior written consent of the Required Noteholdersother confirmation to that effect in form reasonably satisfactory to counsel for each such Investor.
(d) The representations and warranties of the Company set forth in ARTICLE V Corporation contained herein shall be true and correct on and as of the date of such Closing with the same force and effect as though such representations and warranties had been made on and as of the Closing (except where any such representation and warranty speaks by its terms as of a different date, in which case it shall be true and correct as of such date), and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect.
(e) The Company A duly executed Certificate in the form of Exhibit A hereto shall have performed all obligations required to been filed with and accepted by the Secretary of State of Delaware and shall be performed by it at or prior to the Closing effective under the Transaction Documents to which it is a party, and such Noteholder shall have received a certificate signed on behalf laws of the Company by an officer State of the Company to such effectDelaware.
(f) No Default or Event of Default The Corporation shall have occurred delivered to the Investors a certificate or certificates, dated the Closing Date, of the Secretary or Assistant Secretary of the Corporation certifying as to (i) the resolutions of the Corporation's Board of Directors and stockholders authorizing the execution and delivery of this Agreement and the Certificate, the issuance to the Investors of their respective Preferred Shares, the execution and delivery of such other documents and instruments as may be continuingrequired by this Agreement, and the consummation of the transactions contemplated hereby, and certifying that such resolutions were duly adopted and have not been rescinded or amended as of said date, and (ii) the name and the signature of the officers of the Corporation authorized to sign, as appropriate, this Agreement and the other documents and certificates to be delivered pursuant to this Agreement by either the Corporation or any of its officers.
(g) There is not any litigation The Corporation shall have delivered to the Investors a certificate or proceeding pending or threatened which seeks certificates, dated the Closing Date, of the Chairman of the Corporation certifying as to restrain or invalidate the transactions contemplated accuracy and completeness of the representations and warranties made by the Corporation pursuant to this AgreementAgreement and as to the fulfillment of the conditions specified in paragraphs (c), (e) and (f) of this Section 7.
(h) The Company Corporation shall have deliveredexecuted and delivered (i) the Collaborative Research and License Agreement, or caused to be deliveredof even date herewith, to between the Noteholders or their counselCorporation and Roche in substantially the form of Exhibit E hereto (the "Roche Collaboration Agreement"), all such other documents (ii) the Funded Research and agreements reasonably requested by License Agreement, of even date herewith, between the Noteholders Corporation and CSHL in connection with substantially the consummation form of Exhibit F hereto (the transactions contemplated by this "CSHL Research Agreement."), (iii) the License Agreement, of even date herewith, between the Corporation and CSHL in substantially the form of Exhibit G hereto (the "CSHL License Agreement, (iv) the License and Services Agreement, of even date herewith, between the Corporation and OSI in substantially the form of Exhibit H hereto (the "OSI License Agreement") and (v) the Stockholders' Agreement, and shall
Appears in 1 contract
Sources: Convertible Preferred Stock Purchase Agreement (Osi Pharmaceuticals Inc)
Conditions Precedent to the Closing. The obligations effectiveness of each Noteholder to consummate the transactions contemplated by the Transaction Documents are this Agreement is subject to the satisfaction condition precedent that the Agent and each Lender shall be satisfied with, or waiver by the Required Noteholders Borrower shall have delivered to the Agent, as the case may be, on or before the Closing Date of each of Effective Date, the following conditions precedentin form, substance and dated as of a date satisfactory to the Lenders and their counsel and in sufficient quantities for each Lender:
(a) The Noteholders or their counsel this Agreement shall have received a notice of closing (been duly executed and delivered by the “Notice of Closing”) in the form of Schedule 7.2(a) at least five Business Days prior to the Closing, or such shorter period as the Company Borrower and the Required Noteholders shall agree.General Partner;
(b) The Company shall have duly issued completion of and delivered to satisfactory results with respect to, such Noteholder or their counselfinancial, in accordance with ARTICLE II, business and legal due diligence as reasonably requested by the Amended Notes and New Warrants to be delivered to such Noteholder at the Closing.Lenders; RBC – AltaLink (AILP) – 2016 Credit Agreement
(c) Each receipt of a duly executed 2016 Supplemental Indenture, Senior Pledged Bond, Series 3 and Bond Delivery Agreement and any other documents, certificates or other deliveries required under Section 2.4 of the Transaction Documents shall be in full force and effect and no term or condition thereof shall have been amended, waived or otherwise modified without the prior written consent of the Required Noteholders.Master Trust Indenture;
(d) The representations and warranties of the Company set forth in ARTICLE V shall be true and correct as of Agent or the Closing with the same effect as though such representations and warranties had been made on and as of the Closing (except where any such representation and warranty speaks by its terms as of a different date, in which case it shall be true and correct as of such date), and such Noteholder Lenders shall have received any other Loan Documents required by the Agent or the Lenders duly executed by the Borrower and the General Partner, as the case may be;
(e) the following documents in form, substance and execution acceptable to the Agent shall have been delivered to the Agent:
(i) duly certified copies of the constating documents of the Borrower and the General Partner, all necessary resolutions of the board of directors or similar necessary proceedings taken and required to be taken by the Borrower to authorize the execution and delivery of this Agreement and the Loan Documents to which it is a certificate signed party and the entering into and performance of the transactions contemplated herein and therein;
(ii) certificates of incumbency of the General Partner setting forth specimen signatures of the persons authorized to execute this Agreement, on behalf of the Company by an officer of Borrower and the Company to such effect.
(e) The Company shall have performed all obligations required to be performed by it at or prior to the Closing under the Transaction Loan Documents to which it is a party, ;
(iii) certificate of status or the equivalent relative to the Borrower and such Noteholder shall have received a certificate signed on behalf the General Partner under its jurisdiction of creation; and
(iv) the Company by an officer opinion of counsel for the Company Borrower in form and substance satisfactory to such effect.the Lenders;
(f) No there not having occurred a Material Adverse Change since September 30, 2016;
(g) all fees payable on or before the date hereof in connection with the Credit Facility under this Agreement and any fee letter shall have been paid to the Agent; and
(h) there shall exist no Default or Event of Default shall have occurred and be continuingDefault.
(g) There is not any litigation or proceeding pending or threatened which seeks to restrain or invalidate the transactions contemplated by this Agreement.
(h) The Company shall have delivered, or caused to be delivered, to the Noteholders or their counsel, all such other documents and agreements reasonably requested by the Noteholders in connection with the consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pacificorp /Or/)
Conditions Precedent to the Closing. 6.1 Conditions Precedent to MedSource's and the Transferee's Obligations to ----------------------------------------------------------------------- Close. The obligations obligation of each Noteholder MedSource and the Transferee to enter into this ----- Agreement and to consummate the transactions contemplated by the Transaction Documents are hereby is subject to the satisfaction prior to or waiver by the Required Noteholders on the Closing Date of each of the following conditions precedentconditions; provided, however, that MedSource and the Transferee shall have the -------- ------- right to waive all or any part of each such condition and to close the transactions contemplated hereby without, however, releasing any Transferor from any covenant, obligation, agreement or condition contained herein or from any liability for any loss or damage sustained by MedSource or the Transferee by reason of the breach by any Transferor of any covenant, obligation, agreement or condition contained herein or by reason of any misrepresentation made by any Transferor; and provided, further, however, that MedSource and the Transferee's -------- ------- ------- participation in the Closing shall not in any way be deemed to be a waiver of any claim it may have hereunder for any breach of any representation, warranty, covenant or agreement:
(a) The Noteholders or their counsel shall have received a notice of closing (the “Notice of Closing”) in the form of Schedule 7.2(a) at least five Business Days prior to the Closing, or such shorter period as the Company and the Required Noteholders shall agree.
(b) The Company shall have duly issued and delivered to such Noteholder or their counsel, in accordance with ARTICLE II, the Amended Notes and New Warrants to be delivered to such Noteholder at the Closing.
(c) Each of the Transaction Documents shall be in full force and effect and no term or condition thereof shall have been amended, waived or otherwise modified without the prior written consent of the Required Noteholders.
(d1) The representations and warranties of the Company set forth Transferors contained in ARTICLE V this Agreement shall have been true and correct in all material respects when made and shall be true and correct in all material respects as of the Closing Date, with the same force and effect as though if made on the Closing Date, except for such representations and warranties had been as are made on and as of the Closing (except where any such representation and warranty speaks by its terms as of a different specific date, in which case it shall be true and correct in all material respects as of such date, in each case without giving effect to any supplement to the Schedules to this Agreement pursuant to section 5.4(a), .
(2) The covenants and such Noteholder agreements of the Transferors contained in this Agreement and required to be complied with or performed on or prior to the Closing Date shall have been complied with or performed in all respects.
(3) The Transferee shall have received a certificate signed on behalf dated the Closing Date and executed by each of the Company by an officer Transferors certifying the satisfaction of the Company conditions referred to such effectin sections 6.1(a) and (b).
(e4) The Company Transferee shall have performed all obligations required to be performed by it at or prior received, each in form and substance reasonably satisfactory to the Closing under the Transaction Documents to which it is a partyTransferee, all Consents of, and such Noteholder estoppel certificates and releases (including, without limitation, UCC-3 termination statements, payoff letters and evidence of termination of security interests) from, and shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect.
(f) No Default delivered all notices to, any Governmental Entity or Event of Default shall have occurred and be continuing.
(g) There other Person that is not any litigation or proceeding pending or threatened which seeks to restrain or invalidate the transactions contemplated by this Agreement.
(h) The Company shall have delivered, or caused to be delivered, to the Noteholders or their counsel, all such other documents and agreements reasonably requested by the Noteholders in connection with required for the consummation of the transactions contemplated by this Agreementhereby and for the Transferee to conduct and operate the Company, which Consents, notices and estoppel certificates are listed in Schedule 3.4 attached hereto and which releases are listed in Schedule 3.12(a).
(5) No event or events shall have occurred between the date hereof and the Closing Date which, individually or in the aggregate, have, or are reasonably likely to have, a material adverse effect on the condition (financial or otherwise), business, asset or results of operations of the Company.
(6) The Transferee shall have received resignations of each of the directors and each of the officers of the Company.
Appears in 1 contract
Sources: Stock Contribution and Exchange Agreement (Medsource Technologies Inc)
Conditions Precedent to the Closing. The obligations of each Noteholder the Lenders under this Agreement to consummate make the transactions contemplated by the Transaction Documents initial Advance are subject to the and conditional upon satisfaction or waiver by the Required Noteholders on the Closing Date of each of the following conditions precedentand the receipt by the Administrative Agent, for and on behalf of the Lenders, of the following documents, each in full force and effect, and in form and substance satisfactory to the Lenders, acting reasonably:
(a) The Noteholders or their counsel shall have received a notice of closing (this Agreement duly executed and delivered by the “Notice of Closing”) in the form of Schedule 7.2(a) at least five Business Days prior to the Closing, or such shorter period as the Company Borrower and the Required Noteholders shall agree.Fund;
(b) The Company the Fund Guarantee and Subordination Agreement shall have been duly issued executed and delivered to such Noteholder or their counsel, in accordance with ARTICLE II, by the Amended Notes and New Warrants to be delivered to such Noteholder at the Closing.Fund;
(c) Each of the Transaction Documents shall be in full force a Restricted Subsidiary Guarantee and effect and no term or condition thereof Subordination Agreement shall have been amended, waived or otherwise modified without the prior written consent of the Required Noteholders.duly executed and delivered by each Restricted Subsidiary;
(d) The representations the Administrative Agent and warranties of the Company set forth in ARTICLE V shall be true and correct as of the Closing with the same effect as though such representations and warranties had been made on and as of the Closing (except where any such representation and warranty speaks by its terms as of a different date, in which case it shall be true and correct as of such date), and such Noteholder Lenders shall have received a certificate signed on behalf favourable legal opinions of Borrower's Counsel relating to, inter alia, subsistence of the Company by an officer Fund, the Borrower and Restricted Subsidiaries and the authorization, execution, delivery and enforceability of the Company Credit Documents to such effect.which they are a party;
(e) The Company the Borrower shall have performed paid all obligations required to be performed by it at or prior to the Closing under the Transaction Documents to which it is a party, fees and such Noteholder shall have received a certificate signed on behalf expenses then due in respect of the Company by an officer of the Company to such effect.Credit;
(f) No no Default or Event of Default shall have occurred and be continuing., and no Default or Event of Default shall occur as a result of the making of the initial Advance;
(g) There is not the representations and warranties in Article 7 and in any litigation or proceeding pending or threatened which seeks to restrain or invalidate other Credit Document shall be true, complete and correct on and with effect from the transactions contemplated by date of this Agreement.;
(h) The Company all indebtedness and liabilities under the Existing Syndicated Facility shall, except for the Existing BAs, be paid in full and the Administrative Agent shall have deliveredreceived evidence satisfactory to it that the Existing Syndicated Facility has been terminated;
(i) the Administrative Agent and the Lenders shall have received favourable legal opinions of Lenders' Counsel dated on or shortly before the date of the initial Advance; and
(j) the Administrative Agent and the Lenders shall have received in respect of each member of the Restricted Group (unless otherwise specified):
(i) a certificate of status, certificate of compliance, good standing or caused to be deliveredsimilar certificate issued by an appropriate Governmental/Judicial Body of the jurisdiction of organization of such Person;
(ii) evidence of registration in each jurisdiction where it carries on a material business or own material Property;
(iii) a certified copy of their Constating Documents, and a certified copy of the resolutions of the board of directors of the Borrower and each Restricted Subsidiary and a resolution of the Trustee with respect to the Noteholders or their counsel, all such other documents Fund authorizing the execution and agreements reasonably requested by delivery of the Noteholders in connection with the consummation of Credit Documents to which they are a party and the transactions contemplated thereby and the performance by this Agreementeach of them of their obligations thereunder, together with a certificate of a Senior Officer of the Fund, the Borrower and each Restricted Subsidiary to the effect that all such documents are in full force and effect in such form with no proceedings pending to amend or rescind the same, and no agreements or other documents are in effect which restrict the powers of its board of directors (or where appropriate, its trustee); and
(iv) a certificate of incumbency with specimen signatures of the individuals executing any of the Credit Documents to which they are a party.
Appears in 1 contract
Conditions Precedent to the Closing. The obligations of each Noteholder (a) Purchaser's obligation under this Agreement to consummate purchase the transactions contemplated by the Transaction Documents are Property is subject to the satisfaction or waiver by the Required Noteholders on the Closing Date fulfillment of each of the following conditions precedent:conditions, subject, however, to the provisions of Section 9(c):
(a) The Noteholders or their counsel shall have received a notice of closing (the “Notice of Closing”) in the form of Schedule 7.2(a) at least five Business Days prior to the Closing, or such shorter period as the Company and the Required Noteholders shall agree.
(b) The Company shall have duly issued and delivered to such Noteholder or their counsel, in accordance with ARTICLE II, the Amended Notes and New Warrants to be delivered to such Noteholder at the Closing.
(c) Each of the Transaction Documents shall be in full force and effect and no term or condition thereof shall have been amended, waived or otherwise modified without the prior written consent of the Required Noteholders.
(di) The representations and warranties of the Company set forth in ARTICLE V Seller contained herein shall be true materially true, accurate and correct as of the Closing Date, all subject to the provisions of Sections 7(a)(ii) and 7(a)(iv);
(ii) Seller shall be ready, willing and able to deliver title to the Property in accordance with the same effect as though such representations terms and warranties had been made on conditions of this Agreement;
(iii) Seller shall have delivered all the documents and as of the Closing (except where any such representation and warranty speaks by its terms as of a different date, in which case it shall be true and correct as of such date)other items required pursuant to Section 10, and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect.
(e) The Company shall have performed all obligations other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by it Seller at or prior to the Closing Closing;
(iv) Purchaser shall have obtained an estoppel certificate from each tenant under an Anchor Lease in the Transaction Documents form required under such Anchor Lease and each third party to a Shopping Center Agreement in the form required in such Shopping Center Agreement, which estoppel certificate shall not disclose any commitments by Seller to such tenant or party or defaults under such Anchor Lease or Shopping Center Agreement by Seller that in each case would either have a material adverse effect on the Property or impose a material adverse financial obligation on Purchaser, and of which, in each case, Purchaser was not aware as of the date of this Agreement;
(v) All consents and approvals of governmental authorities and parties to agreements to which it Seller is a party, and such Noteholder shall have received a certificate signed on behalf of the Company party or by an officer of the Company to such effect.
(f) No Default or Event of Default shall have occurred and be continuing.
(g) There is not any litigation or proceeding pending or threatened which seeks to restrain or invalidate the transactions contemplated by this Agreement.
(h) The Company shall have delivered, or caused to be delivered, Seller's assets are bound that are required with respect to the Noteholders or their counsel, all such other documents and agreements reasonably requested consummation by the Noteholders in connection with the consummation Seller of the transactions contemplated by this Agreement.Agreement shall have been obtained and copies thereof shall have been delivered to Purchaser at or prior to the Closing;
(vi) On or prior to the Closing Date, (A) 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 same shall have been discharged prior to the Closing Date, and no such receiver, liquidator or trustee shall have otherwise been appointed, unless same shall have been discharged prior to the Closing Date, (B) Seller shall not have admitted in writing an inability to pay its debts as they
Appears in 1 contract
Conditions Precedent to the Closing. 4.1. Conditions Precedent to Obligations of SJMB, ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇. The obligations of each Noteholder to consummate the transactions contemplated by the Transaction Documents are SJMB, ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ set forth in this Agreement shall be subject to the satisfaction or waiver by the Required Noteholders on the Closing Date of each of the following conditions precedent:
(a) The Noteholders or their counsel shall have received a notice of closing (the “Notice of Closing”) in the form of Schedule 7.2(a) at least five Business Days prior to the Closing, or such shorter period as the Company and the Required Noteholders shall agree.
(b) The Company shall have duly issued and delivered to such Noteholder or their counsel, in accordance with ARTICLE II, the Amended Notes and New Warrants to be delivered to such Noteholder at the Closing.
(c) Each of the Transaction Documents shall be in full force and effect and no term or condition thereof shall have been amended, waived or otherwise modified without the prior written consent of the Required Noteholders.
(d) The representations and warranties of the Company set forth in ARTICLE V shall be true and correct as of the Closing with the same effect as though such representations and warranties had been made on and as of the Closing (except where any such representation and warranty speaks by its terms as of a different date, in which case it shall be true and correct as of such date), and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect.
(e) The Company shall have performed all obligations required to be performed by it at or prior to the Closing under of each of the Transaction Documents to which it is a partyfollowing conditions:
(a) the representations and warranties made by the Hanover Entities, and such Noteholder each of them, herein, without taking into account any materiality qualifications therein, shall have received a certificate signed on behalf been true and correct in all material respects when made, and shall be true and correct in all material respects at and as of the Company by Closing, with the same force and effect as though made at the Closing except to the extent that such representations and warranties relate to an officer of the Company to such effect.earlier date;
(fb) No Default or Event the Hanover Entities, and each of Default them, shall have occurred performed and complied in all material respects with all covenants, agreements and obligations in this Agreement to be continuing.performed or complied with prior to or at the Closing;
(gc) There no action, proceeding, suit or investigation shall have been instituted nor shall governmental action before any court or other Governmental Authority be threatened in writing, nor shall any order, judgment or decree have been issued or proposed to be issued by any court or other Governmental Authority which does, or is not any litigation reasonably likely to: (1) set aside, restrain, enjoin or proceeding pending or threatened which seeks to restrain or invalidate prevent the consummation of transactions contemplated by this Agreement.hereby; or (2) otherwise have a Material Adverse Effect on Belleli or HCC Mantova;
(hd) The Company shall have deliveredall necessary authorizations, agreements, registrations, orders, approvals and consents of any persons, entities or caused Governmental Authorities to be delivered, to the Noteholders or their counsel, all such other documents and agreements reasonably requested by the Noteholders in connection with the consummation of the transactions contemplated by this Agreement, or otherwise pertaining to the matters covered by it, shall have been obtained and delivered to SJMB and shall be in full force and effect as of the Closing Date, and no such authorizations, agreements, registrations, orders, approvals or consents shall impose any burdensome or, in SJMB's reasonable determination, unsatisfactory conditions or requirements on SJMB; and
(e) the Hanover Entities shall have released all existing pledges and powers of attorney from SJMB to any of the Hanover Entities, HCHC shall have returned full ownership of the SJMB Initial Quotas to SJMB and HCHC shall have caused title to the SJMB Initial Quotas to be returned to SJMB, without encumbrance of any kind, and shall have caused such clear title to be reflected on the Register of Members of Belleli and in all appropriate public records, other than Encumbrances created by the terms of this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hanover Compressor Co /)
Conditions Precedent to the Closing. The several obligations of each Noteholder the Investors to consummate purchase and pay for the transactions contemplated by Preferred Shares and Warrants at the Transaction Documents Closing are subject to the satisfaction or waiver by the Required Noteholders on the Closing Date of each of the following conditions precedent:
(a) The Noteholders All proceedings to have been taken and all waivers and consents to be obtained in connection with the transactions contemplated by this Agreement shall have been taken or their obtained, and all documents incidental thereto shall be satisfactory to each Investor and its counsel, and each Investor and its counsel shall have received a notice copies (executed or certified, as may be appropriate) of closing (the “Notice of Closing”) all documents which such Investor or its counsel may reasonably have requested in the form of Schedule 7.2(a) at least five Business Days prior to the Closing, or connection with such shorter period as the Company and the Required Noteholders shall agreetransactions.
(b) The Company All legal matters incident to the purchase of the Preferred Shares shall be satisfactory to each Investor's counsel, and the Investors shall have duly issued received from ▇▇▇▇▇▇▇▇ & English, counsel for the Corporation, such firm's opinion addressed to the Investors and delivered to such Noteholder or their counsel, dated the date of the Closing in accordance with ARTICLE II, the Amended Notes and New Warrants to be delivered to such Noteholder at the Closing.form attached hereto as Exhibit D.
(c) Each All consents, permits, approvals, qualifications and/or registrations required to be obtained or effected under any applicable securities or "Blue Sky" laws of the Transaction Documents shall be in full force and effect and no term or condition thereof any jurisdiction shall have been amended, waived obtained or otherwise modified without the prior written consent of the Required Noteholderseffected.
(d) The representations and warranties of the Company set forth in ARTICLE V Corporation contained herein shall be true and correct on and as of the date of such Closing with the same force and effect as though such representations and warranties had been made on and as of the Closing (except where any such representation and warranty speaks by its terms as of a different date, in which case it shall be true and correct as of such date), and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect.
(e) The Company A duly executed Certificate of Designation shall have performed all obligations required to be performed been filed with and accepted by it at or prior to the Closing under the Transaction Documents to which it is a party, and such Noteholder shall have received a certificate signed on behalf Secretary of the Company by an officer State of the Company to such effectDelaware.
(f) No Default or Event of Default The Corporation shall have occurred delivered to the Investors a certificate or certificates, dated the Closing Date, of the Secretary of the Corporation certifying as to (i) the resolutions of the Corporation's Board of Directors approving the issuance to the Investors of the Preferred Shares and Warrants, the execution and delivery of such other documents and instruments as may be continuingrequired by this Agreement, and the consummation of the transactions contemplated hereby, and certifying that such resolutions were duly adopted and have not been rescinded or amended as of said date, and (ii) the name and the signature of the officers of the Corporation authorized to sign, as appropriate, this Agreement and the other documents and certificates to be delivered pursuant to this Agreement by either the Corporation or any of its officers.
(g) There is not any litigation The Corporation shall have delivered to the Investors a certificate or proceeding pending or threatened which seeks certificates, dated the Closing Date, of the President of the Corporation certifying as to restrain or invalidate the transactions contemplated accuracy of the representations and warranties made by the Corporation pursuant to this Agreement.
(h) The Company Corporation shall have deliveredduly executed and delivered an Investors Rights Agreement in the form attached hereto as Exhibit C.
(i) The Investors shall have received duly executed Voting Agreements, or caused in the form attached hereto as Exhibit E, from the holders of such number of shares of the Corporation's Common Stock as would comprise a majority of the shares of Common Stock to be delivered, to outstanding on the Noteholders or their counsel, all such other documents and agreements reasonably requested by record date for meeting of the Noteholders in connection with the consummation of Corporation's shareholders at which the transactions contemplated by this Agreement will be presented for approval.
(j) The gross proceeds from the sale of the Preferred Shares to be received by the Corporation at the Closing shall be at least $1,500,000.
(k) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇ shall have purchased 100,000 and 50,000 Preferred Shares pursuant to this Agreement.
(l) With respect to the obligations of WWC Capital Fund, LP shall have received from its partners pursuant to a capital call made in accordance with its organizational documents, all funds necessary to purchase the Shares.
Appears in 1 contract
Sources: Convertible Preferred Stock Purchase Agreement (Perficient Inc)
Conditions Precedent to the Closing. SECTION 4.01. Conditions to Obligations of the Seller to the Closing. The obligations of each Noteholder the Seller to perform this Agreement and consummate the transactions contemplated by the Transaction Documents hereunder are subject to the satisfaction satisfaction, on or waiver by the Required Noteholders on prior to the Closing Date of each Date, of the following conditions precedent:(unless any of such conditions are expressly waived in writing by the Seller):
(a) The Noteholders or their counsel execution and delivery of this Agreement and Ancillary Agreements by the Purchaser and the performance of its covenants and obligations hereunder and thereunder shall have received a notice of closing (the “Notice of Closing”) in the form of Schedule 7.2(a) at least five Business Days prior to the Closing, or such shorter period as the Company been duly authorized by all necessary and the Required Noteholders shall agreecorporate action.
(b) The Company Each and all of the agreements and covenants of the Purchaser to be performed on or before the Closing Date pursuant to the terms hereof shall have been duly issued and delivered to such Noteholder or their counsel, performed in accordance with ARTICLE II, the Amended Notes and New Warrants to be delivered to such Noteholder at the Closingall material respects.
(c) Each of the Transaction Documents shall be in full force and effect and no term or condition thereof shall have been amended, waived or otherwise modified without the prior written consent of the Required Noteholders.
(d) The representations and warranties of the Company set forth Purchaser contained in ARTICLE V this Agreement shall be true and correct in all respects on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date.
SECTION 4.02. Conditions to Obligations of the Purchaser to the Closing. The obligations of the Purchaser to perform this Agreement and consummate the transactions contemplated hereunder are subject to the satisfaction, on or prior to the Closing Date, of the following conditions (except where unless any of such representation conditions are expressly waived in writing by the Purchaser):
(a) The execution and warranty speaks delivery of this Agreement and Ancillary Agreements by the Seller and the performance of its covenants and obligations hereunder and thereunder shall have been duly authorized by all necessary and corporate action.
(b) Each and all of the agreements and covenants of the Seller to be performed on or before the Closing Date pursuant to the terms as hereof shall have been duly performed in all material respects.
(c) The representations and warranties of a different date, the Seller contained in which case it this Agreement shall be true and correct in all respects on and as of the Closing Date with the same effect as though such date), representations and such Noteholder shall have received a certificate signed warranties had been made on behalf and as of the Company by an officer of the Company to such effectClosing Date.
(e) The Company shall have performed all obligations required to be performed by it at or prior to the Closing under the Transaction Documents to which it is a party, and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect.
(f) No Default or Event of Default shall have occurred and be continuing.
(g) There is not any litigation or proceeding pending or threatened which seeks to restrain or invalidate the transactions contemplated by this Agreement.
(h) The Company shall have delivered, or caused to be delivered, to the Noteholders or their counsel, all such other documents and agreements reasonably requested by the Noteholders in connection with the consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Deep Field Technologies, Inc.)