Conditions to Closing. The obligation of each Lender to enter into and become bound under this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion: (a) evidence of the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents; (b) the payment of all fees, expenses and other amounts due and payable under each Financing Document; (c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; (d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date; (e) receipt of copies, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and (f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Date.
Appears in 1 contract
Conditions to Closing. The 7.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived in writing, the respective obligation of each Lender party to enter into and become bound under this Agreement and effect the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, Merger provided for hereby shall be subject to the receipt by Agent satisfaction, on or prior to the Closing Date, of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionconditions:
(a) evidence No action or proceeding shall have been instituted before a court or other governmental body or by any governmental agency or public authority to restrain or prohibit the transactions contemplated by this Agreement or to obtain an amount of damages or other material relief in connection with the execution of this Agreement or the consummation of the transactions (other than Merger; and no governmental agency shall have given notice to any party hereto to the funding effect that consummation of the Loan) transactions contemplated by the Operative Documents including, without limitation, the funding this Agreement would constitute a violation of any law or that it intends to commence proceedings to restrain consummation of the Merger; and all investments contemplated by no concerted labor activity shall have occurred in connection with the Operative Documentsexecution of this Agreement or the consummation of the Merger;
(b) the payment of all feesAll consents, expenses approvals and waivers from third parties, including federal, state, local, foreign and other amounts due governmental authorities, necessary to consummate the transactions contemplated hereby shall have been obtained, except for filings in connection with the Merger and payable under any other documents required to be filed after the Effective Time and except where the failure to have obtained or made any such consent, authorization, order, approval, filing or registration would not have a Material Adverse Effect on the business of Buyer and Cell-Matrix, taken as a whole, following the Effective Time; and
(c) Buyer, Merger Sub and Cell-Matrix shall have executed and delivered the Certificate of Merger and Articles of Merger and any other appropriate certificates or documents for filing with the Secretary of State of the State of Delaware and the Secretary of State of the State of Nevada and any other appropriate governmental authorities.
7.2 Conditions to Cell-Matrix's Obligation to Effect the Merger. Unless waived by Cell-Matrix in writing, the obligation of Cell-Matrix to effect the Merger provided for hereby shall be subject to the satisfaction, on or prior to the Closing Date, of each Financing Documentof the following conditions:
(a) The representations and warranties of Buyer and Merger Sub contained in this Agreement shall be true and correct in all material respects at and as of the Closing Date as if such representations and warranties were made at and as of the Closing Date, except (i) as and to the extent that the facts and conditions upon which such representations and warranties are based are expressly required or permitted to be changed by the terms hereof and (ii) for representations and warranties that speak as of a specific date or time other than the Closing Date, which need only be true and correct as of such date or time;
(b) Buyer shall have performed, and shall have caused Merger Sub to perform, all agreements and covenants required hereby to be performed by it prior to or at the Closing; provided, however, that Cell-Matrix shall not be entitled to refuse to consummate the transaction in reliance upon its own breach or failure to perform. There shall be delivered to Cell-Matrix a certificate signed by an officer of Buyer certifying as to Buyer's compliance with the conditions set forth in Section 7.2(a) and 7.2(b); and
(c) The Stockholders shall have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to Buyer and Merger Sub, as set forth in Exhibit I hereto.
7.3 Conditions to Buyer and Merger Sub's Obligations to Effect the Merger. Unless waived by Buyer in writing, the obligations of Buyer and Merger Sub to effect the Merger provided for hereby shall be subject to the satisfaction, on or prior to the Closing Date, of each of the following conditions:
(a) The representations and warranties of Cell-Matrix contained in this Agreement shall be true and correct in all material respects at and as of the Closing Date as if such representations and warranties were made at and as of the Closing Date, except (i) as and to the extent that the facts and conditions upon which such representations and warranties are based are expressly required or permitted to be changed by the terms hereof and (ii) for representations and warranties that speak as of a specific date or time other than the Closing Date, which need only be true and correct as of such date or time;
(b) Cell-Matrix shall have performed all agreements and covenants required hereby to be performed by it prior to or at the Closing Date; provided, however, that neither Buyer nor Merger Sub shall be entitled to refuse to consummate the transaction in reliance upon its own breach or failure to perform;
(c) Since December 31From the date of this Agreement through the Effective Time, 2011, no Cell-Matrix Material Adverse Effect shall have occurred and there has been shall exist no development, event, act, condition fact or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, circumstance which could reasonably be expected to have a Cell-Matrix Material Adverse Effect;
(d) Buyer shall have received from each Person who is an Affiliate of Cell-Matrix an executed letter agreement in the receipt form of the initial Borrowing Base Certificate, prepared as of the Closing DateExhibit G hereto;
(e) receipt Each of copies▇▇▇▇▇▇ ▇▇▇▇▇, certified Ph.D., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Ph.D. and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Ph.D. shall have entered into Consulting Agreements in substantially the form attached hereto as true, complete and correct by Exhibit J (the Borrowing Representative, "Consulting Agreements");
(f) Buyer shall have received an executed Stockholders Agreement (including the Consent of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits Spouse attached as Exhibit A thereto, and all material related documents executed and delivered in connection with as applicable) from the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions holders of all of the foregoing outstanding shares of Cell-Matrix Common Stock;
(g) Buyer shall have received evidence of Cell-Matrix's completion of the actions set forth in Section 6.12 regarding the termination of the Equity Plan;
(h) Buyer shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Associates, P.C., counsel to Cell-Matrix, as set forth in Exhibit K hereto;
(i) Cell-Matrix shall have renegotiated its existing Loan and Security Agreement (the "Loan Agreement"), dated January 7, 2000, by and between Cell-Matrix and APS Enterprises Holding Company, Inc. ("Lender"), in a manner acceptable to Buyer, in its reasonable discretion, including, without limitation:
(i) Assignment of said Loan Agreement to Buyer;
(ii) The right of Lender to convert up to $1,000,000 (One Million Dollars) of the outstanding principal amount of the loan into Buyer Preferred Stock at the Buyer Preferred Stock Price at the Closing;
(iii) The right of Buyer to pay off the principal and any accrued interest at any time with no pre-payment penalty;
(iv) The principal and accrued interest to be payable to Lender in full on the sooner of: (A) one (1) year following the closing of a firmly underwritten public offering of Buyer Common Stock pursuant to a registration statement under the Securities Act; or (B) two (2) years from the date the Loan Agreement is assigned to Buyer;
(v) The "base rate" interest rate to be the Citibank prime interest rate; and
(vi) Collateral and security provisions restricted to the assets of Cell-Matrix;
(j) Buyer shall have received confirmation that (i) all Material Contracts will remain in full force and effect following the Closing, and (ii) the Merger will not effect Cell-Matrix's relationship with any of its Material Customers and Material Suppliers;
(k) Buyer shall have received satisfactory assurances from Summit Bank, in its sole discretion, that the Loan Agreement, dated January 31, 2000, by and between Cell-Matrix and Summit Bank, and all agreements contemplated thereby, will be terminated upon payment by Buyer of the amount set forth on the Closing Liability Schedule as payable to Agent Summit Bank;
(l) Buyer shall have renegotiated the Promissory Note, dated September 17, 1999, by and Lenders between Cell-Matrix and their respective counsel ▇▇▇▇ ▇▇▇▇▇▇, in their sole a manner acceptable to Buyer in its reasonable discretion; and
(fm) receipt by Agent of evidence reasonably satisfactory On or prior to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Date, Cell-Matrix shall have delivered to Buyer each of the following:
(i) Cell-Matrix's minute books, stock transfer records, corporate seal and other materials related to Cell-Matrix's corporate administration;
(ii) a copy of the Certificate of Incorporation of Cell-Matrix, as amended, certified by the Secretary of State of the State of Nevada, and Certificates of Good Standing from the Secretaries of State of the States of Nevada and California evidencing the good standing of Cell-Matrix in each such jurisdiction;
(iii) a copy of each of (A) the text of the resolutions adopted by the Board of Directors of Cell-Matrix authorizing the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby and (B) the Bylaws of Cell-Matrix, along with certificates executed on behalf of Cell-Matrix by its corporate secretary certifying to Buyer that such copies are true and complete copies of such resolutions and Bylaws, respectively, and that such resolutions and Bylaws were duly adopted and have not been amended or rescinded; and
(iv) incumbency certificates executed on behalf of Cell-Matrix by its corporate secretary certifying the signature and office of each officer executing this Agreement and the Certificate of Merger and such other agreements contemplated by this Agreement as Buyer may request.
Appears in 1 contract
Sources: Merger Agreement (Cancervax Corp)
Conditions to Closing. The obligation several obligations of each Lender to enter into and become bound under this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be Underwriters hereunder are subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionconditions:
(a) evidence No stop order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or (to the knowledge of the Company) threatened by the Commission; there shall have been no material adverse change and no development involving a prospective material adverse change in the condition of the Company and its consolidated affiliates, taken as a whole, from that set forth in the Registration Statement and the Prospectus, as amended or supplemented as of the date of the Underwriting Agreement; and the representations and warranties of the Company contained herein shall be true and correct on and as of the Closing Date as if made on and as of the Closing Date; and the Manager shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect that no stop order suspending the effectiveness of the Registration Statement is in effect and no proceedings for such purpose are pending before or (to the knowledge of such executive officer) threatened by the Commission, there has been no material adverse change and no development involving a prospective material adverse change in the condition of the Company and its consolidated affiliates, taken as a whole, from that set forth in the Registration Statement and the Prospectus, as amended or supplemented as of the date of the Underwriting Agreement and the representations and warranties of the Company contained herein are true and correct on and as of the Closing Date as if made on and as of the Closing Date.
(b) The Manager shall have received on and as of the Closing Date an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is validly existing and in good standing as a corporation under the laws of the State of Delaware with all requisite corporate power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) the Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the Company enforceable against the Company in accordance with its terms;
(iii) the Notes have been duly authorized, executed and issued by the Company and, assuming due authentication thereof by the Trustee and upon payment and delivery in accordance with the Underwriting Agreement, will constitute valid and binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture;
(iv) this Agreement has been duly authorized, executed and delivered by the Company;
(v) no consent, approval, authorization, order, registration or qualification of or with any Federal or New York court or governmental agency or body or any Delaware court or governmental agency or body acting pursuant to the Delaware General Corporation Law is required for the issue and sale of the Notes by the Company or the consummation by the Company of the other transactions contemplated by this Agreement and the Indenture except for the registration under the Securities Act and such as may be required under the securities or blue sky laws in connection with the purchase and distribution of the Notes by the Underwriters, nor will the issue and sale of the Notes by the Company or the compliance by the Company with all of the provisions of this Agreement or the Indenture or the consummation of the transactions (herein and therein contemplated violate the Company's Certificate of Incorporation or By-laws or any Federal or New York statute or the Delaware General Corporation Law or any rule or regulation or any judgment, order or decree known to such counsel that has been issued pursuant to any Federal or New York statute or the Delaware General Corporation Law by any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties or breach or result in any default under any indenture, mortgage or other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documentsagreement or instrument known to such counsel;
(bvi) the payment statements made in the Prospectus under the captions "Description of Debt Securities" and "Certain Terms of Notes," insofar as they purport to constitute summaries of certain terms of documents referred to therein, constitute accurate summaries of the terms of such documents in all feesmaterial respects;
(vii) there are no contracts or other documents known to such counsel that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement or incorporated by reference therein that are not described and filed or incorporated by reference as required; and
(viii) the Registration Statement has become effective under the Securities Act, expenses and to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or threatened by the Commission; the Prospectus was filed with the Commission pursuant to Rule 424(b) of the rules and regulations under the Securities Act. In addition, such counsel shall state that they have participated in conferences with certain officers and employees of the Company, representatives of the Company's independent public accountants, the Underwriters and their counsel, and although such counsel is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus and has not made any independent check or verification thereof except to the extent described in (vi) and (vii) above, on the basis of the foregoing, based upon their examination of the Registration Statement and the Prospectus (including the documents incorporated by reference therein), their investigations made in connection with the preparation of the Registration Statement and the Prospectus (including the documents incorporated by reference therein) and their participation in the conferences referred to above, (i) such counsel is of the opinion that the Registration Statement, as of its effective date, or if the Registration Statement has been amended, as of the effective date of such amendment, and the Prospectus, as of the date of the Prospectus Supplement relating to the Notes, complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the applicable rules and regulations of the Commission thereunder, except that in each case such counsel expresses no opinion with respect to the financial statements or other amounts due financial or statistical data contained in the Registration Statement or the Prospectus, or with respect to the Statement of Eligibility on Form T-1 of the Trustee, (ii) such counsel is of the opinion that each document incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3, when such document was filed or became effective, or if any incorporated documents was amended, when such amendment was filed or became effective, complied as to form in all material respects with the requirements of the Exchange Act and payable the applicable rules and regulations of the Commission thereunder, except that in each case such counsel expresses no opinion with respect to the financial statements or other financial or statistical data contained in any such document, and (iii) such counsel has no reason to believe that the Registration Statement, as of its effective date and as of the date of the Prospectus Supplement relating to the Notes, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of the date of the Prospectus Supplement relating to the Notes, contained, and the Prospectus (as amended or supplemented) contains any untrue statement of a material fact or omitted or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in each Financing Document;case such counsel expresses no opinion or belief with respect to the financial statements or other financial or statistical data contained in the Registration Statement or the Prospectus, or with respect to the Statement of Eligibility on Form T-1 of the Trustee.
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to The Manager shall have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared received on and as of the Closing Date an opinion of _____________________ of the Company dated the Closing Date, to the effect that:
(i) each of Colonial Penn P&C Group, First Colony Life Insurance Company, General Electric Capital Assurance Company, Great Northern Insured Annuity Corporation and The Life Insurance Company of Virginia (collectively, the "Subsidiaries") has been duly incorporated and is validly existing and in good standing as a corporation under the laws of its jurisdiction of incorporation with all requisite corporate power and authority to own its properties and conduct its business as described in the Prospectus;
(eii) receipt of copies, certified as true, complete and correct by the Borrowing Representative, each of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, Company and the terms Subsidiaries is duly qualified to transact business and conditions is in good standing in the jurisdictions in which the conduct of its business or the ownership of its property requires such qualification, except where the failure to be so qualified or in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(iii) all of the foregoing shall be satisfactory to Agent issued shares of capital stock of or other ownership interests in each Subsidiary have been duly and Lenders validly authorized and their respective counsel issued and are fully paid and non-assessable and, except as set forth in their sole discretion; andthe Prospectus or for directors' qualifying shares, are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(fiv) receipt the issuance and sale of the Notes by Agent the Company as provided herein, the compliance by the Company with all of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed provisions of the Notes, the Indenture and consummated in accordance with the cardioCORE Acquisition this Agreement and other material related documents executed and delivered in connection with the execution and delivery consummation of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt transactions contemplated herein and therein will not contravene the organizational documents of any of the Subsidiaries or result in any violation of any of the terms or provisions of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Ge Financial Assurance Holdings Inc)
Conditions to Closing. The obligation (a) At or before Closing, and contemporaneously with the acceptance of each Lender delivery of the Bonds, the District will provide to enter into and become bound under this Agreement the Underwriter:
(1) a certificate, signed by an official of the District, confirming to the Underwriter that the Preliminary Official Statement as of its date did not, and the other Financing Documents andOfficial Statement as of its date and at the time of Closing did not and does not, if applicable to the best knowledge of said official, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading, and that there has been no material adverse change in the financial condition or affairs of the District which would make it unreasonable for the purchaser of the Bonds to rely upon the Official Statement in connection with the resale of the Bonds; excluding in each case any initial Loans requested information contained therein relating to DTC or its book-entry only system; CUSIP numbers of the Bonds; information contained therein describing the investment policy of the County of Alameda, its current portfolio holdings, and valuation procedures (as they relate to funds of the District held by Borrowers the County Treasurer of the County of Alameda); and information provided by the Underwriter regarding the prices or yields at which the Bonds were re-offered to be the public, as to all of which the District expresses no view.
(2) a certificate, signed by an official of the County of Alameda, confirming to the Underwriter that the Preliminary Official Statement as of its date did not, and the Official Statement as of its date and at the time of Closing did not and does not, to the best knowledge of said official, solely with respect to the information contained therein describing the County’s investment policy, current portfolio holdings, and valuation procedures (as they relate to funds of the District held by the County Treasurer), contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made on therein, in the light of the circumstances under which they were made, not misleading.
(3) a certificate, signed by an official of the District (or an opinion of counsel to the District), confirming to the Underwriter that, as of the date of this Purchase Contract and at the time of Closing, there is no litigation pending, with service of process completed, or, to the best knowledge of said person, threatened, concerning the validity of the Bonds, the levy of taxes to repay the Bonds or the application of tax proceeds to that purpose, the corporate existence of the District, or the entitlement of the officers of the District who have signed the Bonds and the various certificates and agreements of the District relating to the issuance and sale of Bonds, to their respective offices.
(4) a certificate or certificates, signed by an official of the District, confirming to the Underwriter that as of the Closing DateDate all of the representations of the District contained in this Purchase Contract are true, shall be subject and that the Resolution is in full force and effect and has not been amended, modified or rescinded.
(5) an opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, Bond Counsel with respect to the receipt by Agent issuance of each agreementthe Bonds (“Bond Counsel”), document and instrument addressed to the District, approving the validity of the Bonds, substantially in the form set forth on as Appendix C to the closing checklist prepared by Agent or its counselOfficial Statement.
(6) a supplemental opinion of Bond Counsel in a form acceptable to the Underwriter, each substantially in the form set forth as Appendix B herein.
(7) an opinion of ▇▇▇▇▇ ▇▇▇▇, A Professional Law Corporation, counsel for the Underwriter, dated the date of Closing and addressed to the Underwriter, satisfactory in form and substance to the Underwriter.
(8) the duly executed Tax Certificate of the District, dated the date of Closing, in form satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:Bond Counsel.
(a) evidence of the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d9) the receipt of the initial Borrowing Base CertificateDistrict or its agent confirming payment by the Underwriter of the Purchase Price of the Bonds.
(10) the duly executed Continuing Disclosure Certificate of the District, prepared in substantially the form attached as Appendix D to the Preliminary Official Statement.
(11) a certified copy of the adopted Resolution.
(12) an executed copy of the Paying Agent Agreement.
(13) an executed copy of this Purchase Contract.
(14) an executed copy of the Official Statement.
(15) the letter of ▇▇▇▇▇’▇ Investors Service, to the effect that such rating agency has rated the Bonds “[ ]” (or such other equivalent rating as such rating agency may give), and that such rating has not been revoked or downgraded.
(16) such additional opinions, certificates, and documents as Bond Counsel or the Underwriter may reasonably request to evidence the truth and correctness, as of the Closing Date;, of the representations of the parties contained herein, and of the District contained in the Official Statement, and the due performance or satisfaction by the parties at or prior to such time of all agreements then to be performed and all conditions then to be satisfied.
(eb) At or before Closing, and contemporaneously with the acceptance of delivery of the Bonds and the payment of the Purchase Price thereof, the Underwriter will provide to the District:
(1) the receipt of copiesthe Underwriter, certified in form satisfactory to the District and signed by an authorized officer of the Underwriter, confirming delivery of the Bonds to the Underwriter and the satisfaction or waiver of all conditions and terms of this Purchase Contract by the District, and confirming to the District that as of the Closing Date all of the representations of the Underwriter contained in this Purchase Contract are true, complete and correct by in all material respects.
(2) the Borrowing Representative, certification of the final cardioCORE Acquisition AgreementUnderwriter, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be form satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory Bond Counsel, regarding the prices at which the Bonds have been reoffered to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenderspublic, as applicable, on the Closing Datedescribed in Section 3 hereof.
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to Closing. The obligation consummation of each Lender to enter into the transactions set forth in Sections 3 and become bound under this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, 4 shall be subject to the receipt satisfaction, or the waiver by Agent of each agreementBank, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a) evidence Each Bank shall have received the following:
(i) a copy of the consummation Certificate of Domestication of FI as in effect on the Fifth Amendment Closing Date certified by the Secretary of State of the transactions State of Delaware (other than as of a date reasonably near the funding Fifth Amendment Closing Date) as being a true and correct copy of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documentssuch documents on file in his office;
(bii) the payment signed Certificate of the Secretary of State of the State of Delaware, in regular form (dated reasonably near the Fifth Amendment Closing Date), listing the Certificate of Domestication of FI as in effect on the Fifth Amendment Closing Date on file in his office and stating that such documents are the only charter documents of FI on file in his office, that FI is duly domesticated and in good standing in the State of Delaware, and has filed all fees, expenses franchise tax returns and other amounts due has paid all franchise taxes required by law to be filed and payable under each Financing Documentpaid by FI to the date of his Certificate;
(ciii) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt copy of the initial Borrowing Base Certificate, prepared Indonesian Articles of Association of FI and any amendments thereto as of in effect on the Fifth Amendment Closing Date;
(eiv) receipt the signed Certificate of copiesthe Secretary or an Assistant Secretary of FI, certified as truedated the Fifth Amendment Closing Date and certifying, complete among other things, (A) a true and correct copy of resolutions adopted by the Borrowing Representative, Board of Directors of FI and concurred in by the Board of Commissioners of FI authorizing the making and performance of this Amendment and the Amended Credit Agreement and the other Loan Documents to which FI is or is to be a party and the issuance by FI of the final cardioCORE Acquisition New Notes and the borrowings by FI under the Amended Credit Agreement, complete with and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (B) true and correct copies of the Indonesian Articles of Association and the By- laws of FI as in effect on the Fifth Amendment Closing Date and at all schedules and exhibits theretotimes since a date prior to the date of the resolutions described in (A) above, (C) that the Certificate of Domestication of FI has not been amended since the date of the last amendment, shown on the certificate referred to in (ii) above, and all material related (D) the incumbency and specimen signatures of officers of FI executing the foregoing documents executed and any other documents delivered to the Lenders in connection with the Fifth Amendment Closing Date;
(v) the signed opinion of (A) the General Counsel of FCX substantially in the form of Exhibit J to the FCX Credit Agreement, but with respect to this Agreement and the Amended Credit Agreement, (B) D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, special New York counsel for FI, substantially in the form of Exhibit K to the FCX Credit Agreement, but with respect to this Agreement and the Amended Credit Agreement, (C) Liskow & L▇▇▇▇, special Louisiana counsel for FI, substantially in the form of Exhibit L to the FCX Credit Agreement, but with respect to this Agreement and the Amended Credit Agreement, (D) A▇▇ ▇▇▇▇▇▇▇▇▇, Nugroho Reksodiputro, special Indonesian counsel for FI, substantially in the form of Exhibit M to the FCX Credit Agreement, but with respect to this Agreement and the Amended Credit Agreement, and (E) Mochtar, Karuwin & K▇▇▇▇, special Indonesian counsel for the Agent, substantially in the form of Exhibit N to the FCX Credit Agreement, but with respect to this Agreement and the Amended Credit Agreement, in each case dated the Fifth Amendment Closing Date and satisfactory to Cravath, Swaine & M▇▇▇▇, special counsel for the Agents, or such other opinions of counsel as may be satisfactory to Cravath, Swaine & M▇▇▇▇;
(vi) signed Certificates of the Secretary of State of the State of Delaware with respect to FCX, dated reasonably near the Fifth Amendment Closing Date, listing FCX's Certificate of Incorporation as in effect on the Fifth Amendment Closing Date on file in his office and stating that such documents are the only charter documents of FCX on file in his office, that FCX is duly incorporated and in good standing in the State of Delaware, and has filed all franchise tax returns and has paid all franchise taxes required by law to be filed and paid by FCX to the date of his Certificate;
(vii) a signed Certificate of the Secretary or an Assistant Secretary of FCX, dated the Fifth Amendment Closing Date and certifying, among other things, (A) a true and correct copy of resolutions adopted by the Board of Directors of FCX authorizing the making and performance of this Amendment and the continued performance by it of the Amended Credit Agreement, the continued guarantee by it of the borrowings by FI under the Amended Credit Agreement and the execution and delivery of the cardioCORE Acquisition FCX Pledge Agreement and the pledge by it of the shares of FI held by it pursuant thereto, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (B) a true and correct copy of the Certificate of Incorporation and the By- laws of FCX as in effect on the Fifth Amendment Closing Date and at all times since a date prior to the date of the resolutions described in (A) above, (C) that the Certificate of Incorporation of FCX has not been amended since the date of the last amendment shown on the Certificate with respect to FCX referred to in (vi) above, and (D) the incumbency and specimen signatures of officers of FCX executing the foregoing documents and any other documents delivered to the Banks in connection with the Amendment Closing;
(viii) the signed Certificate of a Responsible Officer of each of FCX and FI dated the Fifth Amendment Closing Date and certifying that each representation and warranty made by FCX or FI, as applicable, in this Amendment is true and correct and no Default or Event of Default (under either the Existing Credit Agreement or the Amended Credit Agreement) shall have occurred and be continuing; and
(ix) such other instruments and documents as the Agents or any Bank may reasonably request in connection with the Amendment Closing.
(b) FI shall have paid on the Fifth Amendment Closing Date (i) to the Agent, for the account of the Agent, the Agency Fee due under the Existing Credit Agreement on such date in an aggregate amount to be agreed upon by FTX and the Agent, (ii) to the Departing Banks, the fees to which they are entitled under the last sentence of Section 4(b) and (iii) to the Lenders entitled thereto, the amounts referred to in Section 2(d) and in the penultimate sentence of Section 4(d) and in 4(e).
(c) All amounts payable under Section 4(d)(i) shall have been received by the Administrative Agent.
(d) Each Bank shall have received a New Note of FI duly executed by FI payable to its order and otherwise complying with the provisions of Section 3.4 of the Amended Credit Agreement.
(e) The consent of Bank Indonesia shall have been obtained and shall be in full force and effect.
(f) All other consents, approvals and agreements necessary or advisable in the judgment of the Agents or their counsel for consummation of the Restructuring and the Amendment Closing shall have been obtained and shall be in full force and effect and there shall not be any action, suit, litigation or other proceeding at law or in equity or by or before any court of any Governmental Authority pending which, in the judgment of the Agents or their counsel, is likely to restrain, prevent or impose materially adverse conditions upon the Restructuring or the Amendment Closing or the full and timely performance by the Transaction Parties of their obligations under the Loan Documents and in connection with the Restructuring.
(g) No judgment, order or decree shall be outstanding, and no action shall have been taken by any Governmental Authority, that, in the judgement of the Agents or their counsel, has or is likely to have the effect of restraining, preventing or imposing materially adverse conditions upon the Amendment Closing or the Restructuring, or the full and timely performance by the Transaction Parties of their obligations under the Loan Documents and in connection with the Restructuring.
(h) The Eighth Amendment to the FI Trust Agreement substantially in the form of Exhibit F-1 to the FCX Credit Agreement shall have been executed by the parties thereto and shall be in full force and effect, and a copy of such Amendment shall have been delivered to the Agent.
(i) An amended and restated instrument of power of attorney (Surat Kuasa), substantially in the form of Exhibit F-2 to the FCX Credit Agreement, all as shall have been executed and delivered by all parties theretoFI, and the terms Administrative Agent and conditions the Documentary Agent shall have received evidence that all taxes and notary fees in connection therewith have been paid.
(j) An amended and restated Fiduciary Assignment substantially in the form of Exhibit F-3 to the FCX Credit Agreement and an amended and restated Fiduciary Transfer substantially in the form of Exhibit F-4, together with an amended and restated Fiduciary Power substantially in the form of Exhibit F-5, each shall have been executed and delivered by the respective parties thereto and the Administrative Agent and the Documentary Agent shall have received evidence that all taxes and notary fees in connection therewith have been paid.
(k) The FCX Pledge Agreements substantially in the forms of Exhibit E-1 and E-2 to the FCX Credit Agreement shall have been duly executed by the parties thereto and delivered to the FCX Collateral Agent and shall be in full force and effect, and all the outstanding capital stock of FI owned by FCX shall have been duly and validly pledged thereunder to the FCX Collateral Agent for the ratable benefit of the foregoing Banks, the holders of the B.V. Notes, the lenders under the FCX Credit Agreement and the beneficiaries of FCX Guaranty and certificates representing such stock, accompanied by instruments of transfer endorsed in blank, shall be in the actual possession of the FCX Collateral Agent.
(l) The Restructuring shall have been completed on a generally tax-free basis (subject to exceptions approved by Administrative Agent and the Documentary Agent), including arrangements in connection with the Restructuring with respect to existing indebtedness of FTX, FRP, FCX and FI, all on substantially on the terms of Schedule VII to the FCX Credit Agreement or on terms otherwise satisfactory to the Banks (including all tax, accounting, corporate and partnership matters), and the Administrative Agent and the Documentary Agent shall have received satisfactory opinions of counsel with respect to the Restructuring, its tax status and related matters as they shall reasonably request.
(m) Closing of a new $400,000,000 Chemical/Chase Bank credit facility for FRP and FTX and the satisfaction of the conditions to the initial credit event thereunder shall have occurred substantially simultaneously with the Amendment Closing.
(n) Closing of the FCX Credit Agreement and the FCX Funding Date shall have occurred substantially simultaneously with the Amendment Closing.
(o) The Administrative Agent shall have received an environmental due diligence summary memorandum in form, scope and substance reasonably satisfactory to the Banks, from Cravath, Swaine & M▇▇▇▇ as to certain environmental hazards, liabilities or Remedial Action to which FI or its Subsidiaries may be subject and the Banks shall be reasonably satisfied with the nature and cost of any such hazards, liabilities or Remedial Action and with FI's plans with respect thereto.
(p) Copies of this Amendment which, when taken together, bear the signatures of the parties hereto shall have been received by the Administrative Agent and the Documentary Agent.
(q) All legal matters incident to the Restructuring, this Amendment, the New Notes, the other Loan Documents and the borrowings under the Amended Credit Agreement shall be satisfactory to Agent and Lenders and their respective Cravath, Swaine & M▇▇▇▇, special counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that for the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing DateAgents.
Appears in 1 contract
Sources: Credit Agreement (Freeport McMoran Copper & Gold Inc)
Conditions to Closing. The obligation Unless waived by the Managers, the several obligations of each Lender the Underwriters hereunder are subject to enter into the accuracy of the representations and become bound under this warranties on the part of the Company contained herein as of the date of the Underwriting Agreement and the other Financing Documents and, Closing Date (as if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall ) and the performance by the Company of all the obligations to be subject performed by it under this Agreement on or prior to the receipt by Agent of each agreement, document Closing Date and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionconditions:
(i) Subsequent to the Applicable Time and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the securities of the Company by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act.
(ii) No stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission, and there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business, properties or operations of the Company and its consolidated subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus, that, in the judgment of the Managers, is material and adverse and that makes it, in the judgment of the Managers, impracticable or inadvisable to market or deliver the Offered Securities on the terms and in the manner contemplated in the Time of Sale Prospectus; and the Managers shall have received, on the Closing Date, a certificate, dated the Closing Date and signed by either the chief executive officer or chief financial officer of the Company, to the foregoing effect. Such certificate will also provide that the representations and warranties of the Company contained herein are true and correct as of the Closing Date and that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date. The officer making such certificate may rely upon the best of his knowledge as to proceedings threatened.
(iii) The Managers shall have received on the Closing Date an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, General Counsel and Corporate Secretary of the Company (or another lawyer of the Company reasonably satisfactory to the Underwriters), dated the Closing Date, addressed to the Managers to the effect (as applicable) that: each of the Company and Kansas Gas and Electric Company (the “Principal Subsidiary”) has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Kansas and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification (except where the failure to so qualify would not have a material adverse effect upon the business or financial condition of the Company and its subsidiaries, as a whole); all of the issued shares of capital stock of the Principal Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and (except for directors’ qualifying shares and except as otherwise set forth in the Time of Sale Prospectus and the Prospectus) are owned directly and indirectly by the Company, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that he believes that both the Managers and he are justified in relying upon such opinions and certificates); the Company has an authorized capitalization as set forth in the Time of Sale Prospectus and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; each of the indenture dated as of August 1, 1998 (the “Senior Indenture”) between the Company and Deutsche Bank Trust Company Americas, as successor to Bankers Trust Company, as trustee (the “Senior Debt Trustee”), the indenture to be dated as of a date indicated in a relevant prospectus supplement (the “Subordinated Indenture”) between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Subordinated Debt Trustee”), the Mortgage and Deed of Trust, dated July 1, 1939, between the Company and The Bank of New York Mellon Trust Company, N.A., as successor to ▇▇▇▇▇▇ Trust and Savings Bank, as trustee (the “Mortgage Bond Trustee”), as amended and supplemented by forty-six supplemental indentures supplemental thereto, in addition to the forty-second supplemental (reopening) indenture (such Mortgage and Deed of Trust, as heretofore amended and supplemented, the “Mortgage”) and as to be amended and supplemented by the supplemental indenture, to be dated as of a date indicated in a relevant prospectus supplement (the “Supplemental Indenture”) (the Mortgage, as so amended and supplemented by such supplemental indentures, the “Amended Mortgage”), has been duly authorized, executed and delivered by the Company; assuming the due authorization, execution and delivery by the other parties thereto, the Amended Mortgage constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability; the Amended Mortgage has been duly recorded and filed in each place in which such recording or filing is required to protect and preserve the lien of the Amended Mortgage, and all taxes and recording or filing fees required to be paid in connection with the execution, recording or filing of the Amended Mortgage have been duly paid; the Company has good and sufficient title to, or a satisfactory easement in, all the real property, and has good and sufficient title to all the personal property described in the Amended Mortgage as owned by it and subject to the lien of the Amended Mortgage, except any which may have been released from the lien thereof pursuant to the provisions thereof, subject only to (a) evidence minor leases and liens of judgments not prior to the lien of the consummation Amended Mortgage, which, in such counsel’s opinion, do not interfere with the Company’s business, (b) minor defects, irregularities and deficiencies in titles of properties and rights-of-way which, in such counsel’s opinion, do not materially impair the use of such property and rights of- way for the purposes for which they are held by the Company, and (c) other permitted liens as defined in the Amended Mortgage; subject to the qualifications set forth in this Section 4(c)(vii), the Amended Mortgage constitutes a valid, direct first mortgage lien upon said properties and upon all franchises owned by the Company, which properties and franchises include all the physical properties and franchises of the transactions Company (other than classes of property expressly excepted in the funding Amended Mortgage); all physical properties and franchises (other than classes of property expressly excepted in the Amended Mortgage as aforesaid) thereafter acquired by the Company will, upon such acquisition, become subject to the lien thereof, subject, however, to liens permitted thereby and to any liens existing or placed upon such properties at the time of the Loanacquisition thereof by the Company and except as described in the Time of Sale Prospectus and the Prospectus; and the descriptions of all such properties and assets contained in the granting clauses of the Amended Mortgage are correct and adequate for the purposes of the Amended Mortgage; the Warrant Agreement, if any, has been duly authorized, executed and delivered by the Company; the Unit Agreement, if any, has been duly authorized, executed and delivered by the Company; the Offered Securities have been duly authorized, executed, and delivered by the Company; when the Offered Securities have been duly executed and authenticated in accordance with the provisions of the relevant Senior Indenture, Subordinated Indenture or Amended Mortgage, the Offered Securities will be valid and binding obligations of the Company, enforceable against them in accordance with their terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and will be entitled to the benefits of the relevant Senior Indenture, Subordinated Indenture or Amended Mortgage and to the lien of the Amended Mortgage; this Agreement has been duly authorized, executed and delivered by the Company; except as rights to indemnity and contribution under this Agreement may be limited under applicable law, the execution and delivery by the Company of, and the performance by the Company of its obligations under this Agreement, the Senior Indenture, the Subordinated Indenture, the Amended Mortgage, the Offered Securities, the Warrant Agreement and the Unit Agreement will not contravene any provision of the laws of the State of Kansas or any federal law of the United States of America (including laws relating specifically to electric utility companies and the electric utility industry) that in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the topic contemplated by this Agreement, or, to the Operative Documents includingbest knowledge of such counsel, without limitationof any other state or jurisdiction of the United States, or the articles of incorporation or by-laws (or similar organizational document) of the Company or, to the best knowledge of such counsel, any material agreement or other material instrument binding upon the Company, the funding Senior Indenture, the Subordinated Indenture, the Amended Mortgage, the Offered Securities, the Warrant Agreement and the Unit Agreement, provided that such counsel need not express an opinion as to federal or state securities or Blue Sky laws, and no consent, approval or authorization of any governmental body or agency under the laws of the State of Kansas or any federal law of the United States of America (except with respect to consents, approvals and all investments authorizations relating specifically to the public utility companies or the utilities industry, as to which such counsel is not called upon to express any opinion) that in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the topic contemplated by this Agreement, or, to the Operative Documents;
(b) the payment best knowledge of all feessuch counsel, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature other state or jurisdiction of the United States of America or of any foreign jurisdiction is required for the performance by the Company of its obligations under this Agreement, the Senior Indenture, the Subordinated Indenture, the Amended Mortgage, the Offered Securities, the Warrant Agreement, and the Unit Agreement provided that has occurred such counsel need not express an opinion as to federal or state securities or Blue Sky laws; each of the Company and the Principal Subsidiary possesses valid franchises, certificates of convenience and authority, licenses and permits authorizing it to carry on the electric utility business in which it is engaged, except in the cases that has had the failure to possess such franchises, certificates, licenses or couldpermits, either individually or in the aggregate, would not be reasonably expected to have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole, and neither the Company nor the Principal Subsidiary has received any notice of proceedings relating to the revocation or modification of any such franchise, certificate of convenience and authority, license or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effect;
material adverse effect, except as set forth in or contemplated in the Time of Sale Prospectus and the Prospectus; the statements (dA) in Item 3 of the Company’s most recent Annual Report on Form 10-K incorporated by reference in the Time of Sale Prospectus and the Prospectus, (B) in Part II, Item 1 under the caption “Legal Proceedings” of the Company’s most recent Quarterly Report on Form 10-Q incorporated by reference in the Time of Sale Prospectus and (C) in the Registration Statement in Item 15, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; such counsel does not know of any legal or governmental proceeding pending or threatened (including, without limitation, proceeding pending before the State Corporation Commission of the State of Kansas (“KCC”) or Federal Energy Regulatory Commission (“FERC”)) to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject which is required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and is not so described, or of any contract, other document, public utility law or regulation which is required to be described in the Registration Statement, the Time of Sale Prospectus or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required; the securities into which the Offered Securities are convertible, initially reserved for issuance upon conversion of the Offered Company Securities (the “Underlying Securities”), have been duly authorized and reserved for issuance; when the Underlying Securities are issued upon conversion of the Offered Company Securities in accordance with the terms of the Offered Company Securities, such Underlying Securities will be validly issued, fully paid and non-assessable and will not be subject to any preemptive or other right to subscribe for or purchase such Underlying Securities; the Company has complied with K.S.A. § 66-125 with respect to the issuance of the Offered Securities. No additional consent, approval, authorization, filing with or order of (a) FERC under the Federal Power Act, (b) the receipt KCC or (c) to the knowledge of the initial Borrowing Base CertificateCompany, prepared as of the Closing Date;
(e) receipt of copies, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered any court or governmental agency or body is required in connection with the execution and delivery of transactions contemplated herein, except such as have been obtained under the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, Securities Act and the terms Trust Indenture Act of 1939 (the “Trust Indenture Act”) and conditions such as may be required under the blue sky laws of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered any jurisdiction in connection with the execution purchase and delivery distribution of the cardioCORE Acquisition AgreementSecurities by the Underwriters in the manner contemplated herein and in the Time of Sale Prospectus; and The statements in the prospectus supplement contained in the Time of Sale Prospectus and the Prospectus under “Description of First Mortgage Bonds,” “Description of Senior Notes” or “Description of Subordinated Indebtedness” and in the Base Prospectus under the caption “Description of Debt Securities” as they relate to the Amended Mortgage, the Senior Debt Indenture, the Subordinated Debt Indenture and the Offered Securities, insofar as such statements constitute a summary of the legal matters or documents referred to therein, fairly present the information called for with respect to such legal matters and documents. Each LenderSuch counsel shall also state that nothing has come to his attention that causes him to believe (1) that the Registration Statement or any amendments thereto, by delivering its signature page on the date on which it became effective or the date of filing of the most recent subsequent Annual Report on Form 10-K, contained an untrue statement of a material fact or omitted to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument state a material fact required to be approved by Agent, Required Lenders stated therein or Lenders, as applicable, on necessary to make the Closing Date.statements therein not misleading; (2) that the Time of Sale Prospectus (except for the financial
Appears in 1 contract
Conditions to Closing. The obligation of each Lender to enter into and This Agreement shall not become bound under this Agreement effective (and the other Financing Documents and, if applicable Lenders shall not be required to make any the initial Loans requested by Borrowers to be made or issue any Letters of Credit) until the date on which the Closing Date, shall be subject Company has furnished to the receipt by Administrative Agent each of each agreementthe following, document and instrument set forth on with sufficient copies for the closing checklist prepared by Agent or its counselLenders, each all in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by the Administrative Agent and the Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a1) evidence Copies of the consummation Certificate of Incorporation (or other comparable constituent document) of each Initial Loan Party together with all amendments and a certificate of good standing, both certified as of a recent date by the appropriate governmental officer in its jurisdiction of organization;
(2) Copies, certified by the Secretary or Assistant Secretary of each Initial Loan Party of its By-Laws (or other comparable governing document) and of its Board of Directors’ resolutions (and required resolutions of other bodies) authorizing the execution of the Loan Documents and the transactions contemplated thereby;
(other than 3) An incumbency certificate, certified by the funding Secretary or Assistant Secretary of each Initial Loan Party which shall identify by name and title and bear the signature of the Loan) contemplated officers of such Initial Loan Party authorized to sign the Loan Documents (and, in the case of the Company, to make borrowings hereunder), upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Operative Documents applicable Initial Loan Party;
(4) A certificate, in form and substance satisfactory to the Administrative Agent, signed by the chief financial officer or treasurer of the Company, stating that on the Closing Date (both before and after giving effect to the Loans made and/or Letters of Credit issued thereon) (i) all the representations in this Agreement are true and correct in all material respects (or in all respects in the case of any representation and warranty qualified by materiality or Material Adverse Effect), unless such representation and warranty is made as of a specific date, in which case, such representation and warranty shall be true and correct in all material respects (or in all respects in the case of any representation and warranty qualified by materiality or Material Adverse Effect) as of such date, and (ii) no Default or Unmatured Default has occurred and is continuing or would result therefrom;
(5) An opening compliance certificate, substantially in the form of Exhibit H attached hereto and made a part hereof, signed by the Company’s chief financial officer or treasurer, but solely demonstrating compliance with the provisions of Section 7.4 as of the end of the fiscal quarter ending May 27, 2016, all in form and substance reasonably satisfactory to the Administrative Agent;
(6) The Administrative Agent (for the benefit of itself and the other parties entitled thereto) and the Arranger shall have received all fees and other amounts due and payable on or prior to the Closing Date, including (x) to the extent invoiced at least three (3) Business Days prior to the Closing Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Company hereunder, and (y) all accrued and unpaid interest and fees under the Existing Credit Agreement; provided, that without limiting the foregoing, if, after giving effect to the transactions contemplated hereby on the Closing Date (including, without limitation, the funding reduction of any and all investments contemplated by the Operative DocumentsAggregate Revolving Loan Commitment), the Revolving Credit Obligations exceed the Aggregate Revolving Loan Commitment, then the Company shall prepay Loans on the Closing Date in such amounts as shall be necessary to eliminate such excess;
(b7) The written opinion of the payment of all feesGeneral Counsel or an Assistant General Counsel to the Company, expenses addressed to the Administrative Agent and other amounts due the Lenders, in form and payable under each Financing Documentsubstance acceptable to the Administrative Agent and its counsel;
(c) Since December 318) The written opinion of Winston & ▇▇▇▇▇▇ LLP, 2011the Company’s U.S. counsel, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregateform of the opinion attached hereto as Exhibit E, reasonably be expected addressed to have a Material Adverse Effectthe Administrative Agent and the Lenders, in form and substance acceptable to the Administrative Agent and its counsel;
(d9) The written opinion of Winston & ▇▇▇▇▇▇ LLP, French counsel to Steelcase SAS, addressed to the Administrative Agent and the Lenders, in form and substance acceptable to the Administrative Agent and its counsel;
(10) A certificate, in form and substance satisfactory to the Administrative Agent, signed by the chief financial officer or treasurer of the Company, demonstrating that on the Closing Date, (i) the receipt total assets of all Non-Supporting Subsidiaries do not exceed thirty percent (30%) of the initial Borrowing Base CertificateCompany’s Consolidated Assets, prepared determined as of May 27, 2016, and (ii) the total sales of all Non-Supporting Subsidiaries do not exceed thirty percent (30%) of the Company’s Consolidated Sales, determined as of May 27, 2016 (it being understood and agreed, however, that, in making such determination, total assets and total sales of each Non-Supporting Subsidiary shall be determined only by reference to the total assets and total sales of such Non-Supporting Subsidiary (and not on a consolidated basis for such Non-Supporting Subsidiary) and shall exclude all offsetting debits and credits between such Non-Supporting Subsidiary and its respective consolidated Subsidiaries and all equity investments in such consolidated Subsidiaries);
(11) A certificate, in form and substance satisfactory to the Administrative Agent, signed by an Authorized Officer of the Company, (a) identifying and describing the ownership of the Significant Subsidiaries of the Company as of the Closing Date and (b) identifying and attaching the Investment Policy of the Company as in effect on the Closing Date;
(e12) receipt of copiesA Second Amended and Restated Pledge Agreement, certified as truein form and substance satisfactory to the Administrative Agent, complete and correct governed by the Borrowing Representative, laws of France with respect to the pledge of 65% of the final cardioCORE Acquisition Agreement, complete with all schedules voting Equity Interests (and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery 100% of the cardioCORE Acquisition Agreementnon-voting Equity Interests, all if any) of Steelcase SAS;
(13) (a) Satisfactory audited consolidated financial statements of the Company for the two most recent fiscal years ended prior to the Closing Date as executed to which such financial statements are available, (b) satisfactory unaudited interim consolidated financial statements of the Company for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (a) of this paragraph as to which such financial statements are available and delivered by all parties thereto(c) satisfactory financial statement projections through and including the Company’s 2021 fiscal year, together with such information as the Administrative Agent and the terms and conditions of all Lenders shall reasonably request (including, without limitation, a detailed description of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel assumptions used in their sole discretionpreparing such projections); and
(f14) receipt by Such other documents as the Administrative Agent or any Lender or its counsel may have reasonably requested with at least two (2) Business Days’ prior notice (unless the Company otherwise consents, such consent not to be unreasonably withheld or delayed), including, without limitation, a counterpart of evidence reasonably satisfactory to Agent that this Agreement signed on behalf of such party, the cardioCORE Acquisition has been closed Guarantees and consummated in accordance with each other instrument, document, agreement or certificate reflected on the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery List of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page Closing Documents attached as Exhibit F to this Agreement. Without in any way limiting the foregoing, this Agreement shall be deemed to have acknowledged receipt ofnot become effective unless and until it has been executed by the Company, the Administrative Agent and the Lenders, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved such party has notified the Administrative Agent by Agent, Required Lenders facsimile or Lenders, as applicable, on the Closing Dateelectronic transmission that it has taken such action.
Appears in 1 contract
Sources: Credit Agreement (Steelcase Inc)
Conditions to Closing. (a) The Company’s obligation of each Lender to enter into purchase, and become bound under this Agreement and convey the other Financing Documents andTotal Purchase Price for, if applicable make any initial Loans requested by Borrowers to be made on the Shares at the Closing Date, shall be is subject to the following conditions having been satisfied (or the Company waiving in writing the conditions that it has determined have not been satisfied) on or before the Closing: (i) the Selling Stockholder shall have delivered to the Company written notice of his retirement from the Company’s Board of Directors and resignation from all of his positions with the Company’s Board of Directors and from all Board committees on which he serves effective as of the Closing including receipt by Agent of each agreement, document the Total Purchase Price and instrument set forth on confirming that the Selling Stockholder’s retirement and resignation is not due to a disagreement with the Company (the “Letter of Retirement”); (ii) the Company shall have received the closing checklist prepared deliverables to be delivered by Agent or its counselSelling Stockholder pursuant to Section 1(c), each in form and substance satisfactory to Agentthe Company, which shall be fully executed originals or electronic copies of such originals, and (iii) the representations and warranties of Selling Stockholder contained in Section 4 shall be true and correct at and as of the date of Closing with the same force and effect as if such other closing deliverables reasonably requested by Agent representations and Lenders, warranties had been made as of the Closing.
(b) The Selling Stockholder’s obligation to sell the Shares at the Closing and deliver the Letter of Retirement is subject to the satisfaction of the following conditions precedenthaving been satisfied (or Selling Stockholder waiving in writing the conditions that it has determined have not been satisfied) on or before the Closing: (i) the Company shall have performed all of its agreements, each covenants and obligations to be performed by it under the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a) evidence of the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents Consulting Agreement, including, without limitation, payments of the funding of any and all investments contemplated “Consulting Fee” as defined in the Consulting Agreement, (ii) Selling Stockholder shall have received the closing deliverables to be delivered by the Operative Documents;
Company pursuant to Section 1(c), in form and substance satisfactory to the Selling Stockholder, which shall be fully executed originals or electronic copies of such originals, and (biii) the payment representations and warranties of all fees, expenses Company contained in Section 3 shall be true and other amounts due correct at and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the date of Closing Date;
(e) receipt of copies, certified with the same force and effect as true, complete if such representations and correct by the Borrowing Representative, warranties had been made as of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing DateClosing.
Appears in 1 contract
Sources: Stock Repurchase Agreement (Stratus Properties Inc)
Conditions to Closing. (a) Conditions to the Obligations of the Company. The obligation obligations hereunder of each Lender the Company to enter into and become bound under consummate the transactions contemplated by this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers with respect to be made on the Closing Date, shall be each Purchaser are subject to the receipt by Agent of each agreementfulfillment, document and instrument set forth on prior to or at the closing checklist prepared by Agent or its counselClosing, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(ai) evidence the accuracy in all material respects of the consummation representations and warranties of such Purchaser hereunder as of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any date hereof and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date, as the case may be, as if such representations and warranties had been made on and as of such dates;
(eii) receipt the performance by such Purchaser of copies, certified as true, complete and correct by its obligations hereunder that are required to be performed at or prior to the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with Closing;
(iii) the execution and delivery of the cardioCORE Acquisition AgreementRegistration Rights Agreement by such Purchaser, all as executed which Registration Rights Agreement shall, upon execution thereof by the Company, be in full force and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; andeffect;
(fiv) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each LenderWarrant Agreement by such Purchaser, which Warrant Agreement shall, upon execution thereof by delivering its signature page the Company, be in full force and effect;
(v) the execution and delivery of this Agreement by such Purchaser, which Agreement shall, upon execution thereof by the Company, be in full force and effect; and
(vi) no action or proceeding by or before any court, administrative body or governmental agency shall have been instituted or threatened by a third party which seeks to enjoin, restrain or prohibit, or might result in damages in respect of, this Agreement or consummation of the transactions contemplated by this Agreement.
(b) Conditions to the Obligations of the Purchasers. The obligations hereunder of each Purchaser to consummate the transactions contemplated by this Agreement with respect to such Purchaser are subject to the fulfillment, shall be deemed prior to have acknowledged receipt ofor at the Closing, of the following conditions precedent:
(i) the accuracy in all material respects of the representations and consented to warranties of the Company hereunder as of the date hereof and approvedas of the Closing Date, each Financing Documentas the case may be, each additional Operative Document as if such representations and each other document, agreement and/or instrument warranties had been made on and as of such dates;
(ii) the performance by the Company of its obligations hereunder that are required to be approved performed at or prior to the Closing;
(iii) the execution and delivery of the Registration Rights Agreement by Agentthe Company, Required Lenders or Lenderswhich Registration Rights Agreement shall thereupon be in full force and effect;
(iv) the execution and delivery of the Warrant Agreement by the Company, which Warrant Agreement shall thereupon be in full force and effect;
(v) the receipt by each Purchaser of a standard legal opinion of counsel to the Company dated as applicable, on of the Closing DateDate as to the matters set forth in Sections 6(a), (b), (c) and (n) and as to exemption from the registration requirements of the Securities Act of the sale of the Shares and the Warrant Shares;
(vi) no action or proceeding by or before any court, administrative body or governmental agency shall have been instituted or threatened by a third party which seeks to enjoin, restrain or prohibit, or might result in damages in respect of, this Agreement or consummation of the transactions contemplated by this Agreement;
(vii) all shares of Series A convertible preferred stock of the Company, par value $0.01 per share (the "Series A Stock"), shall have been converted into shares of Common Stock at or prior to the Closing pursuant to the terms and conditions set forth in that certain Certificate of the Powers, Designations, Preferences and Rights of the Series A Stock (the "Series A Certificate of Designations"), no shares of Series A Stock shall be issued and outstanding immediately following the Closing, and the Company shall have provided reasonable evidence thereof to each Purchaser at the Closing;
(viii) all holders of Series A Stock shall have executed and delivered the Series A Agreement;
(ix) the Series D Consent shall have been executed and delivered by a sufficient number of Series D Holders so that it shall have become effective;
(x) each Purchaser shall have received a certificate executed by an authorized officer of the Company confirming that the conditions set forth in Sections 8(b)(i), (ii) and (vi) have been duly satisfied; and
(xi) the aggregate purchase price to be tendered at the Closing by all of the Purchasers for the Securities shall be at least $20 million.
Appears in 1 contract
Sources: Stock and Warrant Purchase Agreement (Evergreen Solar Inc)
Conditions to Closing. The obligation effectiveness of each Lender to enter into and become bound under this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be is subject to the receipt by satisfaction of the following conditions: The Agent shall have received the following, each dated as of each agreementthe Closing Date (unless otherwise indicated), document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to the Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a) evidence receipt of the consummation an executed counterpart of the transactions this Agreement;
(other than the funding b) if requested by any Lender, receipt of the Loan) contemplated by the Operative Documents a duly executed Note for such Lender (including, without limitation, the funding of any and all investments contemplated Swingline Note if requested by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing DocumentSwingline Lender);
(c) Since receipt of opinions of (i) ▇▇▇▇▇▇ Law Firm, P.A., counsel for the Borrower and (ii) the General Counsel or an Assistant General Counsel to the Borrower, substantially in the forms of Exhibit B-1 and B-2, hereto, respectively, and covering such additional matters relating to the transactions contemplated hereby as the Lenders may reasonably request;
(d) receipt of a certificate signed by a principal financial or accounting officer of the Borrower, to the effect that (i) no Default or Event of Default has occurred and is continuing as of the Closing Date, (ii) since December 31, 20112014, there has been no developmentchange or changes in the business, eventassets, actliabilities, operations, condition (financial or occurrence otherwise) or prospects of any nature that has occurred that has had the Borrower on a consolidated basis, or couldin the facts and information regarding such entities which alone, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect;
Effect and (diii) the receipt representations and warranties of the initial Borrowing Base Certificate, prepared Borrower contained in Article IV hereof are true in all material respects as of the Closing Datedate hereof;
(e) receipt of copiesall documents which the Agent and the Lenders may reasonably request relating to the existence of the Borrower, certified as truethe corporate authority for and the validity of this Agreement and the other Loan Documents and any other matters relevant hereto, complete all in form and correct substance satisfactory to the Agent and the Lenders, including without limitation a certificate of incumbency of the Borrower, signed by the Borrowing Representative, Secretary or an Assistant Secretary of the final cardioCORE Acquisition Borrower, certifying as to the names, true signatures and incumbency of the officer or officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party and certified copies of the following items: (i) the Borrower’s Restated Articles of Incorporation, (ii) the Borrower’s By-laws, (iii) a certificate of the Secretary of State of the State of South Carolina as to the existence of the Borrower as a South Carolina corporation, and (iv) the action taken by the Board of Directors of the Borrower authorizing the Borrower’s execution, delivery and performance of this Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, Notes and the terms and conditions of all of other Loan Documents to which the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; andBorrower is a party;
(f) receipt by the Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed Borrower shall have irrevocably terminated all commitments, or otherwise amended and consummated restated any such commitment in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered its entirety in connection with herewith, other than those commitments under the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to Existing Credit Agreement that constitute Commitments under this Agreement, and indefeasibly paid in full all amounts due under the Existing Credit Agreement (or such amounts shall be deemed outstanding under this Agreement pursuant to have acknowledged Section 7.14 hereof);
(g) receipt of, by the Agent (for its own account and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or the account of the Lenders, as applicable) of all fees required to be received in connection with this Agreement on or before such Closing Date;
(h) receipt and satisfactory review by the Agent and the Lenders of such financial information regarding the Borrower and its subsidiaries as may be reasonably requested;
(i) receipt of such other documents and information as the Agent and the Lenders may reasonably request (including, without limitation, documents and information in order to comply with requirements of the Patriot Act, applicable “know your customer” and anti-money laundering rules and regulations);
(j) receipt by the Agent of a Notice of Account Designation specifying the account or accounts to which the proceeds of any Loans made on or after the Closing DateDate are to be disbursed; and
(k) receipt by the Agent of evidence satisfactory to the Agent that the Borrower has received all regulatory approvals required in connection with obtaining the refinancing provided for in this Agreement.
Appears in 1 contract
Sources: Credit Agreement (South Carolina Electric & Gas Co)
Conditions to Closing. The obligation several obligations of each Lender to enter into and become bound under this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be Underwriters --------------------- hereunder are subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionconditions:
(a) evidence No stop order suspending the effectiveness of the consummation Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or (to the knowledge of the transactions (other than Company) threatened by the funding Commission, and there shall have been no material adverse change in the condition of the LoanCompany and its consolidated affiliates, taken as a whole, from that set forth in the Registration Statement and the Prospectus; and the Manager shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect that no stop order suspending the effectiveness of the Registration Statement is in effect and no proceedings for such purpose are pending before or (to the knowledge of such executive officer) contemplated threatened by the Operative Documents includingCommission, without limitationand there has been no material adverse change in the condition of the Company and its consolidated affiliates, taken as a whole, from that set forth in the funding of any Registration Statement and all investments contemplated by the Operative Documents;Prospectus.
(b) the payment of all fees, expenses The Manager shall have received on and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date an opinion of either the Senior Vice President, General Counsel and Secretary of the Company or the Associate General Counsel-Treasury Operations and Assistant Secretary of the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is validly existing under the laws of the State of Delaware;
(eii) receipt the Company is duly qualified to transact business and is in good standing in the jurisdictions in which the conduct of copiesits business or the ownership of its property requires such qualification;
(iii) the Note Indenture, certified as truethe Warrant Note Indenture and the Warrant Agreement have been duly authorized, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered by the Company, are valid and binding agreements of the Company enforceable against the Company in connection accordance with their terms and the Note Indenture and the Warrant Note Indenture have been qualified under the Trust Indenture Act of 1939 as amended;
(iv) the Notes, the Warrant Notes and the Warrants have been duly authorized and, when executed and authenticated in accordance with the provisions of the Note Indenture, the Warrant Note Indenture and the Warrant Agreement and delivered to and paid for by the Underwriters (or, in the case of Contract Securities, by institutional investors pursuant to Delayed Delivery Contracts), and in the case of the Warrant Notes, upon exercise of the Warrants, will be valid and binding obligations of the Company enforceable against the Company in accordance with their terms and will entitle the holders thereof to the benefits of the Note Indenture, the Warrant Note Indenture and the Warrant Agreement;
(v) this Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law;
(vi) the Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company and are valid and binding agreements of the Company enforceable against the Company in accordance with their terms;
(vii) neither the execution and delivery of this Agreement nor the cardioCORE Acquisition Agreementissuance and sale of the Offered Securities by the Company as provided herein (or issuance of the Warrant Notes by the Company upon exercise of the Warrants) will contravene the Organization Certificate or By-Laws of the Company or result in any violation of any of the terms or provisions of any law, all rule or regulation (other than with respect to applicable state securities or Blue Sky laws, as executed to which such counsel need not express any opinion) or of any indenture, mortgage or other agreement or instrument known to such counsel by which the Company or any of its subsidiaries is bound; and delivered no consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by all parties theretothe Company of the transactions contemplated by this Agreement or the Indenture, except such as have been obtained under the Securities Act and the Trust Indenture Act of 1939, as amended, and such as may be required under the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; andapplicable state securities or Blue Sky laws;
(fviii) receipt by Agent the statements contained in the Prospectus under the captions "Description of evidence reasonably satisfactory Notes," "Description of Warrants" and "Delayed Delivery Arrangement" fairly present the matters referred to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Date.therein;
Appears in 1 contract
Sources: Underwriting Agreement (General Electric Capital Corp)
Conditions to Closing. The obligation of each Lender the Company to enter into and become bound under this Agreement and effect the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, Share Exchange shall be subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent fulfillment at or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and prior to the satisfaction Closing of the following conditions precedentconditions, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionunless waived by RVRC:
(a) evidence each representation, warranty and covenant of LipoVation and each of the consummation LipoVation Shareholders is true and correct at the Closing as if made on and as of the transactions (other than Closing and at or prior to the funding Closing LipoVation shall have delivered to LipoVation a certificate to that effect signed by an officer of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative DocumentsLipoVation;
(b) Each of LipoVation and the payment LipoVation Shareholders shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the Share Exchange and at or prior to the Closing LipoVation shall have delivered to the Company a certificate to that effect signed by an officer of all fees, expenses and other amounts due and payable under each Financing DocumentLipoVation;
(c) Since December 31All authorizations, 2011approvals or permits, if any, of any Governmental Authority or regulatory body that are required in connection with the lawful issuance of the RVRC Shares pursuant to this Agreement shall be obtained and effective as of the Closing;
(d) From the date of the execution of this Agreement through the Closing, there has been no developmentshall not have occurred any change, event, act, condition circumstance or occurrence of any nature that has occurred event concerning LipoVation that has had or couldcould be reasonably likely to have a Material Adverse Effect on LipoVation;
(e) LipoVation shall have adopted at or prior to Closing a resolution of the LipoVation Shareholders adopting amended restated Articles of Association for LipoVation;
(f) The Tax Ruling shall have been issued by the Israeli Tax Authority;
(g) delivery to RVRC of the LipoVation Documents; and
(h) No temporary restraining order, either preliminary or permanent injunction or other Judgment or Law of, or issued by, any court of competent jurisdiction or other Governmental Authority shall be in effect, in each case having the effect of making the Share Exchange illegal or otherwise prohibiting consummation of the Share Exchange or imposing, individually or in the aggregate, reasonably a burdensome condition (collectively, “Legal Restraints”) and (ii) no Governmental Authority shall have instituted any action or proceeding (which remains pending at what would otherwise be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date;
(e) receipt before any court or other Governmental Authority of copiescompetent jurisdiction seeking to temporarily or permanently enjoin, certified as true, complete and correct by the Borrowing Representative, restrain or otherwise prohibit consummation of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders Share Exchange or Lenders, as applicable, on the Closing Dateimpose a Legal Restraint.
Appears in 1 contract
Conditions to Closing. The obligation of each the Lender to enter into and become bound under this Agreement and make the other Financing Documents and, if applicable make any initial Loans requested by Borrowers advance pursuant to be made on the Closing Date, Section 2.1 hereof shall be subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionconditions:
(a) evidence The representations of the consummation Corporation herein shall be true, complete and correct in all material respects on the date hereof and on and as of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared Closing Date as of if made on the Closing Date;
(eb) receipt of copiesOn the Closing Date, certified as truethe Loan Documents shall be in full force and effect, complete assuming due authorization and correct execution by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits other parties thereto, and all material related documents shall not have been amended or supplemented except as may have been agreed to in writing by the Lender;
(c) At or prior to the Closing Date, the Lender shall have received each of the following documents:
(i) This Agreement executed by an authorized officer of the Corporation;
(ii) The Series 2022 Note executed by an authorized officer of the Corporation;
(iii) A certificate, dated the Closing Date, executed by an authorized officer of the Corporation, to the effect that (A) the representations and delivered warranties of the Corporation contained in connection this Agreement are true and correct on the date hereof and on and as of the Closing Date as if made on the Closing Date; (B) the Resolution and this Agreement are in full force and effect and have not been amended or supplemented except as may have been approved in writing by the Lender; (C) the Corporation is not in default with respect to any of its outstanding obligations; and (D) no litigation is pending or, to the best of their knowledge, threatened in any court to restrain or enjoin the execution and delivery of this Agreement or the cardioCORE Acquisition Agreement, all as executed Series 2022 Note or the levy and delivered by all parties thereto, and the terms and conditions of all collection of the foregoing shall be satisfactory to Agent Economic Development Sales and Lenders Use Tax or the pledge thereof, or contesting or affecting the adoption and their respective counsel in their sole discretion; and
(f) receipt by Agent validity of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with Resolution or the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the authorization, execution and delivery of the cardioCORE Acquisition Agreement. Each LenderLoan Documents, or contesting the powers of the Board of Directors of the Corporation;
(iv) Certified copies of resolutions of the City and the Corporation authorizing execution, delivery and performance of all of the Loan Documents and authorizing the borrowing hereunder, along with such certificates of existence, certificates of good standing and other certificates or documents as the Lender may reasonably require to evidence the Corporation’s authority;
(v) True copies of all organizational documents of the Corporation, including all amendments, restatements or supplements thereto;
(vi) An opinion of counsel which shall specifically provide that (1) the Corporation is a validly existing non-profit corporation created by delivering its signature page the City of ▇▇▇▇▇▇ pursuant to this AgreementChapter 504 of the Act and (2) the Corporation is duly authorized and empowered to execute, shall be deemed to have acknowledged receipt of, deliver and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on perform the Closing DateLoan Documents.
Appears in 1 contract
Sources: Loan Agreement
Conditions to Closing. The obligation Unless waived by the Managers, the several obligations of each Lender the Underwriters hereunder are subject to enter into the accuracy of the representations and become bound under this warranties on the part of the Company contained herein as of the date of the Underwriting Agreement and the other Financing Documents and, Closing Date (as if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall ) and the performance by the Company of all the obligations to be subject performed by it under this Agreement on or prior to the receipt by Agent of each agreement, document Closing Date and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionconditions:
(a) evidence Subsequent to the Applicable Time and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the consummation possible change, in the rating accorded the Company or any of the transactions (other than the funding securities of the LoanCompany by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) contemplated by of the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;Exchange Act.
(b) No stop order suspending the payment effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission, and there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business, properties or operations of the Company and its consolidated subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus, that, in the judgment of the Managers, is material and adverse and that makes it, in the judgment of the Managers, impracticable or inadvisable to market or deliver the Offered Securities on the terms and in the manner contemplated in the Time of Sale Prospectus; and the Managers shall have received, on the Closing Date, a certificate, dated the Closing Date and signed by either the chief executive officer or chief financial officer of the Company, to the foregoing effect. Such certificate will also provide that the representations and warranties of the Company contained herein are true and correct as of the Closing Date and that the Company has complied with all fees, expenses agreements and other amounts due and payable under each Financing Document;satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date. The officer making such certificate may rely upon the best of his knowledge as to proceedings threatened.
(c) Since December 31The Managers shall have received on the Closing Date an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇, 2011Vice President, there General Counsel and Corporate Secretary of the Company (or another lawyer of the Company reasonably satisfactory to the Underwriters), dated the Closing Date, addressed to the Managers to the effect (as applicable) that:
(i) each of the Company and Kansas Gas and Electric Company (the “Principal Subsidiary”) has been no developmentduly incorporated, eventis validly existing as a corporation in good standing under the laws of the State of Kansas and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification (except where the failure to so qualify would not have a material adverse effect upon the business or financial condition of the Company and its subsidiaries, actas a whole);
(ii) all of the issued shares of capital stock of the Principal Subsidiary have been duly and validly authorized and issued, condition are fully paid and non-assessable, and (except for directors’ qualifying shares and except as otherwise set forth in the Time of Sale Prospectus and the Prospectus) are owned directly and indirectly by the Company, free and clear of all liens, encumbrances, equities or occurrence claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that he believes that both the Managers and he are justified in relying upon such opinions and certificates);
(iii) the Company has an authorized capitalization as set forth in the Time of Sale Prospectus and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iv) each of the indenture dated as of August 1, 1998 (the “Senior Indenture”) between the Company and Deutsche Bank Trust Company Americas, as successor to Bankers Trust Company, as trustee (the “Senior Debt Trustee”), the indenture to be dated as of a date indicated in a relevant prospectus supplement (the “Subordinated Indenture”) between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Subordinated Debt Trustee”), the Mortgage and Deed of Trust, dated July 1, 1939, between the Company and The Bank of New York Mellon Trust Company, N.A., as successor to ▇▇▇▇▇▇ Trust and Savings Bank, as trustee (the “Mortgage Bond Trustee”), as amended and supplemented by [ ] indentures supplemental thereto (such Mortgage and Deed of Trust, as heretofore amended and supplemented, the “Mortgage”) and as to be amended and supplemented by the supplemental indenture, to be dated as of a date indicated in a relevant prospectus supplement (the “Supplemental Indenture”) (the Mortgage, as so amended and supplemented by such supplemental indentures, the “Amended Mortgage”), has been duly authorized, executed and delivered by the Company;
(v) assuming the due authorization, execution and delivery by the other parties thereto, the Amended Mortgage constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability;
(vi) the Amended Mortgage has been duly recorded and filed in each place in which such recording or filing is required to protect and preserve the lien of the Amended Mortgage, and all taxes and recording or filing fees required to be paid in connection with the execution, recording or filing of the Amended Mortgage have been duly paid;
(vii) the Company has good and sufficient title to, or a satisfactory easement in, all the real property, and has good and sufficient title to all the personal property described in the Amended Mortgage as owned by it and subject to the lien of the Amended Mortgage, except any which may have been released from the lien thereof pursuant to the provisions thereof, subject only to (a) minor leases and liens of judgments not prior to the lien of the Amended Mortgage, which, in such counsel’s opinion, do not interfere with the Company’s business, (b) minor defects, irregularities and deficiencies in titles of properties and rights-of-way which, in such counsel’s opinion, do not materially impair the use of such property and rights of- way for the purposes for which they are held by the Company, and (c) other permitted liens as defined in the Amended Mortgage; subject to the qualifications set forth in this Section 4(c)(vii), the Amended Mortgage constitutes a valid, direct first mortgage lien upon said properties and upon all franchises owned by the Company, which properties and franchises include all the physical properties and franchises of the Company (other than classes of property expressly excepted in the Amended Mortgage); all physical properties and franchises (other than classes of property expressly excepted in the Amended Mortgage as aforesaid) thereafter acquired by the Company will, upon such acquisition, become subject to the lien thereof, subject, however, to liens permitted thereby and to any liens existing or placed upon such properties at the time of the acquisition thereof by the Company and except as described in the Time of Sale Prospectus and the Prospectus; and the descriptions of all such properties and assets contained in the granting clauses of the Amended Mortgage are correct and adequate for the purposes of the Amended Mortgage;
(viii) the Warrant Agreement, if any, has been duly authorized, executed and delivered by the Company;
(ix) the Unit Agreement, if any, has been duly authorized, executed and delivered by the Company;
(x) the Offered Securities have been duly authorized, executed, and delivered by the Company;
(xi) when the Offered Securities have been duly executed and authenticated in accordance with the provisions of the relevant Senior Indenture, Subordinated Indenture or Amended Mortgage, the Offered Securities will be valid and binding obligations of the Company, enforceable against them in accordance with their terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and will be entitled to the benefits of the relevant Senior Indenture, Subordinated Indenture or Amended Mortgage and to the lien of the Amended Mortgage;
(xii) this Agreement has been duly authorized, executed and delivered by the Company;
(xiii) except as rights to indemnity and contribution under this Agreement may be limited under applicable law, the execution and delivery by the Company of, and the performance by the Company of its obligations under this Agreement, the Senior Indenture, the Subordinated Indenture, the Amended Mortgage, the Offered Securities, the Warrant Agreement and the Unit Agreement will not contravene any provision of the laws of the State of Kansas or any federal law of the United States of America (including laws relating specifically to electric utility companies and the electric utility industry) that in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the topic contemplated by this Agreement, or, to the best knowledge of such counsel, of any nature other state or jurisdiction of the United States, or the articles of incorporation or by-laws (or similar organizational document) of the Company or, to the best knowledge of such counsel, any material agreement or other material instrument binding upon the Company, the Senior Indenture, the Subordinated Indenture, the Amended Mortgage, the Offered Securities, the Warrant Agreement and the Unit Agreement, provided that has occurred such counsel need not express an opinion as to federal or state securities or Blue Sky laws, and no consent, approval or authorization of any governmental body or agency under the laws of the State of Kansas or any federal law of the United States of America (except with respect to consents, approvals and authorizations relating specifically to the public utility companies or the utilities industry, as to which such counsel is not called upon to express any opinion) that has had in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the topic contemplated by this Agreement, or, to the best knowledge of such counsel, of any other state or couldjurisdiction of the United States of America or of any foreign jurisdiction is required for the performance by the Company of its obligations under this Agreement, either the Senior Indenture, the Subordinated Indenture, the Amended Mortgage, the Offered Securities, the Warrant Agreement, and the Unit Agreement provided that such counsel need not express an opinion as to federal or state securities or Blue Sky laws;
(xiv) each of the Company and the Principal Subsidiary possesses valid franchises, certificates of convenience and authority, licenses and permits authorizing it to carry on the electric utility business in which it is engaged, except in the cases that the failure to possess such franchises, certificates, licenses or permits, individually or in the aggregate, would not be reasonably expected to have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole, and neither the Company nor the Principal Subsidiary has received any notice of proceedings relating to the revocation or modification of any such franchise, certificate of convenience and authority, license or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effectmaterial adverse effect, except as set forth in or contemplated in the Time of Sale Prospectus and the Prospectus;
(dxv) the receipt statements (A) in Item 3 of the initial Borrowing Base CertificateCompany’s most recent Annual Report on Form 10-K incorporated by reference in the Time of Sale Prospectus and the Prospectus, prepared as (B) in Part II, Item 1 under the caption “Legal Proceedings” of the Closing DateCompany’s most recent Quarterly Report on Form 10-Q incorporated by reference in the Time of Sale Prospectus and (C) in the Registration Statement in Item 15, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings;
(exvi) receipt such counsel does not know of copiesany legal or governmental proceeding pending or threatened (including, certified as truewithout limitation, complete and correct by proceeding pending before the Borrowing Representative, State Corporation Commission of the final cardioCORE Acquisition AgreementState of Kansas (“KCC”) or Federal Energy Regulatory Commission (“FERC”)) to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject which is required to be described in the Registration Statement, complete the Time of Sale Prospectus or the Prospectus and is not so described, or of any contract, other document, public utility law or regulation which is required to be described in the Registration Statement, the Time of Sale Prospectus or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required;
(xvii) the securities into which the Offered Securities are convertible, initially reserved for issuance upon conversion of the Offered Company Securities (the “Underlying Securities”), have been duly authorized and reserved for issuance;
(xviii) when the Underlying Securities are issued upon conversion of the Offered Company Securities in accordance with all schedules the terms of the Offered Company Securities, such Underlying Securities will be validly issued, fully paid and exhibits theretonon-assessable and will not be subject to any preemptive or other right to subscribe for or purchase such Underlying Securities;
(xix) the Company has complied with K.S.A. § 66-125 with respect to the issuance of the Offered Securities. No additional consent, and all material related documents executed and delivered approval, authorization, filing with or order of (a) FERC under the Federal Power Act, (b) the KCC or (c) to the knowledge of the Company, any court or governmental agency or body is required in connection with the execution transactions contemplated herein, except such as have been obtained under the Securities Act and delivery the Trust Indenture Act of 1939 (the “Trust Indenture Act”) and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the cardioCORE Acquisition Agreement, all as executed Securities by the Underwriters in the manner contemplated herein and delivered by all parties thereto, and in the terms and conditions Time of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretionSale Prospectus; and
(fxx) receipt by Agent The statements in the prospectus supplement contained in the Time of evidence reasonably satisfactory Sale Prospectus and the Prospectus under “Description of First Mortgage Bonds,” “Description of Senior Notes” or “Description of Subordinated Indebtedness” and in the Base Prospectus under the caption “Description of Debt Securities” as they relate to Agent the Amended Mortgage, the Senior Debt Indenture, the Subordinated Debt Indenture and the Offered Securities, insofar as such statements constitute a summary of the legal matters or documents referred to therein, fairly present the information called for with respect to such legal matters and documents. Such counsel shall also state that nothing has come to his attention that causes him to believe (1) that the cardioCORE Acquisition has been closed and consummated in accordance with Registration Statement or any amendments thereto, on the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with date on which it became effective or the execution and delivery date of filing of the cardioCORE Acquisition Agreement. Each Lendermost recent subsequent Annual Report on Form 10-K, by delivering its signature page contained an untrue statement of a material fact or omitted to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument state a material fact required to be approved by Agent, Required Lenders stated therein or Lenders, as applicable, on necessary to make the Closing Date.statements therein not misleading; (2) that the Time of Sale Prospectus (ex
Appears in 1 contract
Conditions to Closing. The obligation (a) At or before Closing, and contemporaneously with the acceptance of delivery of the Bonds, the District will provide to the Underwriters:
(1) a certificate, signed by an official of the District, confirming to the Underwriters that the Preliminary Official Statement as of its date did not, and the Official Statement as of its date and at the time of Closing did not and does not, to the best of the knowledge of said official, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading, and that there has been no material adverse change in the financial condition or affairs of the District which would make it unreasonable for the purchaser of the Bonds to rely upon the Official Statement in connection with the resale of the Bonds; excluding in each Lender case any information contained therein relating to enter into DTC or its book-entry only system; CUSIP numbers of the Bonds; information contained therein describing the investment policy of the County of Alameda, its current portfolio holdings, and become bound valuation procedures (as they relate to funds of the District held by the Treasurer-Tax Collector); and information provided by the Underwriters regarding the prices or yields at which the Bonds were re-offered to the public, as to all of which the District expresses no view.
(2) a certificate, signed by an official of the County of Alameda, confirming to the Underwriters that the Preliminary Official Statement as of its date did not, and the Official Statement as of its date and at the time of Closing did not and does not, to the best of the knowledge of said official, solely with respect to the information contained therein describing the County’s investment policy, current portfolio holdings, and valuation procedures (as they relate to funds of the District held by the Treasurer-Tax Collector), contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(3) a certificate, signed by an official of the District (or an opinion of counsel to the District), confirming to the Underwriters that, as of the date of this Purchase Agreement and at the other Financing Documents andtime of Closing, if applicable make any initial Loans requested there is no litigation pending, with service of process completed, or, to the best of the knowledge of said person, threatened, concerning the validity of the Bonds, the levy of taxes to repay the Bonds or the application of tax proceeds to that purpose, the corporate existence of the District, or the entitlement of the officers of the District who have signed the Bonds and the various certificates and agreements of the District relating to the issuance and sale of Bonds, to their respective offices.
(4) a certificate or certificates, signed by Borrowers an official of the District, confirming to be made on the Underwriters that as of the Closing DateDate all of the representations of the District contained in this Purchase Agreement are true, shall be subject and that the Resolution is in full force and effect and has not been amended, modified or rescinded.
(5) the opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, Bond Counsel with respect to the receipt by Agent issuance of each agreementthe Bonds (“Bond Counsel”), document and instrument addressed to the District, approving the validity of the Bonds, dated the date of Closing, substantially in the form set forth on as Appendix C to the closing checklist prepared by Agent or its counselOfficial Statement.
(6) a supplemental opinion of Bond Counsel in a form acceptable to the Underwriters, each dated the date of Closing, substantially in the form set forth as Appendix B herein.
(7) an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Underwriters (“Underwriters’ Counsel”), dated the date of Closing and addressed to the Underwriters, satisfactory in form and substance to the Underwriters.
(8) the duly executed Tax Certificate of the District, dated the date of Closing, in form satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:Bond Counsel.
(a) evidence of the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d9) the receipt of the initial Borrowing Base CertificateDistrict or its agent confirming payment by the Underwriters of the Purchase Price of the Bonds.
(10) the duly executed Continuing Disclosure Certificate of the District, prepared in substantially the form attached as Appendix D to the Preliminary Official Statement.
(11) a certified copy of the adopted Resolution.
(12) an executed copy of the Paying Agent Agreement.
(13) an executed copy of this Purchase Agreement.
(14) an executed copy of the Official Statement.
(15) the letter of S&P Global Ratings (“S&P”) and Fitch Ratings (“Fitch”), to the effect that such rating agencies have rated the Bonds “AA-” and “AA,” respectively (or such other equivalent rating as each such rating agency may give), and that each such rating has not been revoked or downgraded.
(16) a certificate signed by a District official setting forth a projection evidencing that tax rates with respect to the 2020E Bonds are projected not to exceed $30.00 per $100,000 of assessed value during the term of the 2020E Bonds.
(17) a certificate signed by a District official setting forth a projection evidencing that tax rates with respect to the 2020A Bonds are projected not to exceed $30.00 per $100,000 of assessed value during the term of the 2020A Bonds.
(18) a certificate signed by a County official confirming that the District is in compliance with applicable bonding capacity limitations.
(19) such additional opinions, certificates, and documents as Bond Counsel or the Underwriters may reasonably request to evidence the truth and correctness, as of the Closing Date;, of the representations of the parties contained herein, and of the District contained in the Official Statement, and the due performance or satisfaction by the parties at or prior to such time of all agreements then to be performed and all conditions then to be satisfied.
(eb) At or before Closing, and contemporaneously with the acceptance of delivery of the Bonds and the payment of the Purchase Price thereof, the Underwriters will provide to the District:
(1) the receipt of copiesthe Underwriters, certified in form satisfactory to the District and signed by an authorized officer of the Representative, confirming delivery of the Bonds to the Underwriters and the satisfaction or waiver of all conditions and terms of this Purchase Agreement by the District, and confirming to the District that as of the Closing Date all of the representations of the Underwriters contained in this Purchase Agreement are true, complete and correct by in all material respects.
(2) the Borrowing Representative, certifications of the final cardioCORE Acquisition AgreementUnderwriters, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be form satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory Bond Counsel, regarding the prices at which the Bonds have been reoffered to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenderspublic, as applicable, on the Closing Datedescribed in Section 3 hereof.
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to Closing. The Lenders’ obligation of each Lender to enter into and become bound under this Agreement and fund the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be is subject to the receipt by Agent occurrence of each agreement, document the Effective Date and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction (or waiver in accordance with Section 13.13) of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a1) evidence of except as disclosed in the consummation of Company SEC Documents (as defined in the transactions Blue Acquisition Agreement as in effect on February 3, 2015) filed with, or furnished to, the Securities and Exchange Commission after April 28, 2013 and prior to February 3, 2015 (excluding any disclosures set forth in any such Company SEC Document in any risk factor section, any forward-looking disclosure in any section relating to forward-looking statements or any other statements that are non-specific, predictive or primarily cautionary in nature other than historical facts included therein) or in the funding of Company Disclosure Letter (as defined in the LoanBlue Acquisition Agreement as in effect on February 3, 2015), since April 27, 2014 and prior to February 3, 2015, there shall not have been any change, event, fact, effect or occurrence that has had, or would reasonably be expected to have a Blue Material Adverse Effect and (2) contemplated by the Operative Documents includingsince February 3, without limitation2015, the funding of there shall not have been any and all investments contemplated by the Operative Documentschange, event, fact, effect or occurrence that has had or would reasonably be expected to have a Blue Material Adverse Effect;
(b) the payment Blue Acquisition shall be consummated substantially concurrently with the Borrowing on the Closing Date, in accordance with the Blue Acquisition Agreement, and the Blue Acquisition Agreement (as in effect on February 3, 2015) has not been amended or modified by the Borrower, and no condition shall have been waived or consent granted by the Borrower, in any respect that is materially adverse to the Lenders or to Bank of America without Bank of America’s prior written consent (it being understood and agreed that (i) any decrease in the cash portion of the Blue Acquisition Consideration that is accompanied by a dollar-for-dollar reduction in the Commitments and (ii) any increase in the cash portion of the Blue Acquisition Consideration, together with any other increases since February 3, 2015, which does not exceed 5% of the purchase price, in each case shall be deemed not to be materially adverse to the Lenders or to Bank of America); and
(c) each of the Blue Acquisition Agreement Representations and the Specified Blue Acquisition Representations shall be true and correct in all feesmaterial respects as of the Closing Date, expenses except to the extent the same expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, provided that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects (after giving effect to any qualification therein);
(d) the Administrative Agent shall have received a certificate from an Authorized Representative of the Borrower, certifying as to clauses (a), (b) and (c) of this Section 7.2;
(e) the Administrative Agent shall have received, at the Borrower’s option, either: (1) for each of the Borrower and Big Heart Pet Brands (the “Operating Subsidiary”)
(a) U.S. GAAP audited consolidated balance sheets and related statements of comprehensive income (loss), stockholders’ equity and cash flows for the three most recently completed fiscal years ended at least 60 days prior to the Closing Date and (b) U.S. GAAP unaudited consolidated balance sheets and related unaudited statements of comprehensive income (loss) and cash flows for each subsequent interim fiscal quarter ended at least 40 days before the Closing Date, which financial statements shall meet the requirements in all material respects of Regulation S-X under the Securities Act of 1933 (the “Securities Act”) for a registered public offering of debt Securities of the Borrower on Form S-1 (except such provisions for which compliance is not customary for private placements of debt securities pursuant to Rule 144A under the Securities Act) or (2) for each of the Borrower and the Blue Acquired Business (a) U.S. GAAP audited consolidated balance sheets and related statements of comprehensive income (loss), stockholders’ equity and cash flows for the three most recently completed fiscal years ended at least 60 days prior to the Closing Date and (b) U.S. GAAP unaudited consolidated balance sheets and related unaudited statements of comprehensive income (loss) and cash flows for the interim period from the date of the most recent such audited consolidated balance sheet through the date of the most recent quarterly period that has ended at least 40 days prior to the Closing Date, which financial statements shall meet the requirements in all material respects of Regulation S-X under the
(a) with respect to the Borrower and the Operating Subsidiary for the fiscal years ended 2012, 2013 and 2014, and in the foregoing clause (1)(b) with respect to the Borrower and the Operating Subsidiary for the fiscal quarters ended on or about July 31, 2014 and October 31, 2014; provided that the Borrower’s and Operating Subsidiary’s or the Blue Acquired Business’, as the case may be, filing of any required audited financial statements with respect to the Borrower or Operating Subsidiary or the Blue Acquired Business, as the case may be, on Form 10-K or required unaudited financial statements with respect to the Borrower or Operating Subsidiary or the Blue Acquired Business, as the case may be, on Form 10-Q, in each case, will satisfy the requirements under clauses (1)(a) or (2)(a) or (1)(b) or (2)(b), as applicable, of this paragraph;
(f) the Administrative Agent shall have received the Notice of Borrowing required by Section 1.6 hereof;
(g) the Administrative Agent shall have received a solvency certificate from the chief financial officer of the Borrower in the form attached as Exhibit H hereto;
(h) the Administrative Agent, the Lead Arranger and the Lenders shall have received all fees as set forth in the Fee Letter, and other amounts due and payable under to them pursuant to the terms hereof, in each Financing Document;
(c) Since December 31case, 2011, there has been no development, event, act, condition on or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected prior to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date;
, including, to the extent invoiced at least three Business Days prior to the Closing Date (e) receipt or such later date as the Borrower may reasonable agree), reimbursement or payment of copies, certified as true, complete and correct all out-of-pocket expenses required to be reimbursed or paid by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretionBorrower hereunder or under any other Loan Document; and
(fi) receipt by Agent All principal amounts of evidence reasonably satisfactory to Agent that debt outstanding under the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery following indentures or loan agreements of the cardioCORE Acquisition Blue Acquired Business and its Subsidiaries will be repaid, redeemed or satisfied and discharged and the commitments thereunder terminated substantially simultaneously with or immediately after the funding of the Loans: (i) Indenture, dated as of February 16, 2011, between Operating Subsidiary and The Bank of New York Mellon Trust Company, N.A., governing Operating Subsidiary’s 7.625% Senior Notes due 2019, (ii) Credit Agreement. Each Lender, dated as of March 8, 2011, by delivering and among Operating Subsidiary, certain of its signature page affiliates, the lenders party thereto from time to this time and JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, and (iii) Credit Agreement, shall be deemed dated as of March 6, 2014, by and among Operating Subsidiary, certain of its affiliates, the lenders party thereto from time to have acknowledged receipt oftime and JPMorgan Chase Bank, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or LendersN.A., as applicable, on the Closing Dateadministrative agent and collateral agent.
Appears in 1 contract
Conditions to Closing. The obligation Unless waived by the Managers, (i) the several obligations of each Lender the Underwriters to enter into purchase the Firm Shares, and become bound under this the obligations of the Forward Seller to deliver and sell the Borrowed Firm Shares, are subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the date of the Underwriting Agreement and the other Financing Documents and, Closing Date (as if applicable make any initial Loans requested by Borrowers to be made on the Closing Date), shall be and (ii) the several obligations of the Underwriters to purchase any Optional Securities, and the obligations of the Forward Seller to deliver and sell any Borrowed Optional Securities, are subject to the receipt by Agent accuracy of each agreement, document the representations and instrument set forth warranties on the closing checklist prepared by Agent or its counselpart of the Company contained herein as of the date of the Underwriting Agreement, each in form the Closing Date (as if made on the Closing Date) and substance satisfactory to Agentany Option Closing Date up to, and including, the Option Closing Date applicable to such other closing deliverables reasonably requested Optional Securities, and, in each case, the performance by Agent and Lendersthe Company of all of the obligations to be performed by it under this Agreement on or prior to the Closing Date or applicable Option Closing Date, as the case may be, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionconditions:
(a) evidence Subsequent to the Applicable Time and prior to the Closing Date or the applicable Option Closing Date, as the case may be, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the securities of the Company by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission, and there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business, properties or operations of the Company and its consolidated subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus (exclusive of any amendments or supplements thereto effective after the date of the Underwriting Agreement), that, in the judgment of the Managers, is material and adverse and that makes it, in the judgment of the Managers, impracticable or inadvisable to market or deliver the Offered Securities on the terms and in the manner contemplated in the Time of Sale Prospectus; and the Managers shall have received, on the Closing Date or the applicable Option Closing Date, as the case may be, a certificate, dated the Closing Date or the applicable Option Closing Date, as the case may be, and signed by either the chief executive officer or chief financial officer of the Company, to the foregoing effect. Such certificate will also provide that the representations and warranties of the Company contained herein are true and correct as of the Closing Date or the applicable Option Closing Date, as the case may be, and that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date or the applicable Option Closing Date, as the case may be. The officer making such certificate may rely upon the best of his knowledge as to proceedings threatened.
(c) The Forward Seller, the Forward Counterparty and the Managers shall have received on the Closing Date or the applicable Option Closing Date, as the case may be, an opinion of L▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President, General Counsel and Corporate Secretary of the Company (or another lawyer of the Company reasonably satisfactory to the Underwriters, the Forward Seller and the Forward Counterparty), dated the Closing Date or the applicable Option Closing Date, as the case may be, addressed to the Forward Seller, the Forward Counterparty and the Managers to the effect that:
(i) each of the Company and Kansas Gas and Electric Company (the “Principal Subsidiary”) has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Kansas and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification (except where the failure to so qualify would not have a material adverse effect upon the business or financial condition of the Company and its subsidiaries, as a whole);
(ii) the Company has an authorized capitalization as set forth in the Time of Sale Prospectus and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) all of the issued shares of capital stock of the Principal Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and (except for directors’ qualifying shares and except as otherwise set forth in the Time of Sale Prospectus and the Prospectus) are owned directly and indirectly by the Company, free and clear of all liens, encumbrances, equities and claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that he believes that both the Managers and he are justified in relying upon such opinions and certificates);
(iv) any Company Securities have been duly authorized by the Company, and, when executed and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable;
(v) this Agreement, the Forward Agreement and any Optional Forward Agreement entered into by the Company on or prior to the date of such opinion have been duly authorized, executed and delivered by the Company;
(vi) except as rights to indemnity and contribution under this Agreement may be limited under applicable law, the execution, delivery and performance of this Agreement, the Forward Agreement and any Optional Forward Agreement entered into by the Company on or prior to the date of such opinion and the issuance (in the case of Company Securities) and the consummation of the transactions (other than the funding contemplated herein and therein will not contravene any provision of applicable law of the LoanUnited States (including laws relating specifically to electric utility companies and the electric utility industry), Kansas, or, to the best knowledge of such counsel, of any other state or jurisdiction of the United States, or the articles of incorporation or by-laws (or similar organizational document) contemplated of the Company or, to the best knowledge of such counsel, any material agreement or other material instrument binding upon the Company, and, except for the orders of the Commission making the Registration Statement effective (which have been obtained) and such permits or similar authorizations required under the securities or Blue Sky laws of certain states or foreign jurisdictions (as to which such counsel is not called upon to express any opinion), no consent, approval or authorization of any governmental body or agency of the United States (except with respect to consents, approvals and authorizations relating specifically to the public utility companies or the utilities industry, as to which such counsel is not called upon to express any opinion), Kansas, or, to the best knowledge of such counsel, of any other state or jurisdiction of the United States or of any foreign jurisdiction is required for the performance by the Operative Documents including, without limitationCompany of its obligations under this Agreement, the funding of Forward Agreement or any and all investments contemplated Optional Forward Agreement entered into by the Operative DocumentsCompany on or prior to the date of such opinion;
(bvii) each of the payment Company and the Principal Subsidiary possesses valid franchises, certificates of all feesconvenience and authority, expenses licenses and other amounts due and payable under each Financing Document;
(c) Since December 31permits authorizing it to carry on the electric utility business in which it is engaged, 2011except in the cases that the failure to possess such franchises, there has been no developmentcertificates, eventlicenses or permits, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, would not be reasonably expected to have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole, and neither the Company nor the Principal Subsidiary has received any notice of proceedings relating to the revocation or modification of any such franchise, certificate of convenience and authority, license or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effectmaterial adverse effect, except as set forth in or contemplated in the Time of Sale Prospectus and the Prospectus;
(viii) the statements (A) in Item 3 of the Company’s most recent Annual Report on Form 10-K incorporated by reference in the Time of Sale Prospectus and the Prospectus, (B) in Part II, Item 1 under the caption “Legal Proceedings” of the Company’s most recent Quarterly Report on Form 10-Q incorporated by reference in the Time of Sale Prospectus and (C) in the Registration Statement in Item 15, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings;
(ix) such counsel does not know of any legal or governmental proceeding pending or threatened (including, without limitation, proceeding pending before the State Corporation Commission of the State of Kansas (“KCC”) or Federal Regulatory Energy Commission (“FERC”)) to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject which is required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and is not so described, or of any contract, other document, public utility law or regulation which is required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required;
(x) the Company has complied with K.S.A. § 66-125 with respect to the issuance of the Company Securities, if any. No additional consent, approval, authorization, filing with or order of (a) FERC under the Federal Power Act, (b) the KCC or (c) to the knowledge of the Company, any court or governmental agency or body is required in connection with the transactions contemplated herein, in the Forward Agreement or in any Optional Forward Agreement entered into by the Company on or prior to the date of such opinion, except such as have been obtained under the Securities Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Time of Sale Prospectus; and
(xi) the statements in the prospectus supplement contained in the Time of Sale Prospectus and the Prospectus under “The Offering,” and in the Base Prospectus under “Description of Capital Stock,” insofar as such statements constitute a summary of the legal matters or documents referred to therein, fairly present the information called for with respect to such legal matters and documents. Such counsel shall also state that no facts have come to his attention that caused him to believe (1) that the Registration Statement or any amendments thereto (except for the financial statements and other financial or statistical data derived therefrom that are included or incorporated by reference therein or omitted therefrom, as to which such counsel is not called upon to express any belief), on the date on which it became effective or the date of filing of the most recent subsequent Annual Report on Form 10-K, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (2) that the Time of Sale Prospectus (except for the financial statements and other financial or statistical data derived therefrom that are included or incorporated by reference therein or omitted therefrom, as to which such counsel is not called upon to express any belief), at the Applicable Time or as amended or supplemented, if applicable, at the Closing Date or the applicable Option Closing Date, as the case may be, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (3) that the Prospectus (except for the financial statements and other financial or statistical data derived therefrom that are included or incorporated by reference therein or omitted therefrom, as to which such counsel is not called upon to express any belief), at its date or as amended or supplemented, if applicable, at the Closing Date or the applicable Option Closing Date, as the case may be, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make statements therein, in the light of the circumstances under which they were made, not misleading; or (4) that the documents incorporated by reference in the Prospectus (except for the financial statements and other financial or statistical data derived therefrom that are included or incorporated by reference therein or omitted therefrom, as to which such counsel is not called upon to express any belief), as of the dates they were filed with the Commission, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. With respect to the preceding paragraph, such counsel may state that he has not been called upon to pass upon, and that he expresses no view regarding, the financial statements or financial schedules or statistical data derived therefrom or other accounting or financial data included in the Registration Statement, the Time of Sale Prospectus or the Prospectus, and that his opinion and belief is based upon his participation in the preparation of the Registration Statement, Time of Sale Prospectus, Prospectus (as amended or supplemented) and the documents incorporated therein by reference and review and discussion of the contents thereof, but is without independent check or verification except as specified. In expressing his opinion as to questions of the law of jurisdictions other than the State of Kansas and the United States, such counsel may rely to the extent reasonable on such counsel as may be reasonably acceptable to counsel to the Underwriters. In addition, such counsel may reasonably rely as to questions of fact on certificates of responsible officers of the Company.
(d) The Forward Seller, the receipt of Forward Counterparty and the initial Borrowing Base Certificate, prepared as of Managers shall have received on the Closing Date or the applicable Option Closing Date, as the case may be, an opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, special counsel for the Company, dated the Closing Date or the applicable Option Closing Date, as the case may be, to the effect that:
(i) the Company is not, and after giving effect to (a) the transactions contemplated by this Agreement and (b) entry into the Forward Agreement and any Optional Forward Agreement entered into by the Company on or prior to the date of such opinion, will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(eii) receipt of copiesexcept as rights to indemnity and contribution under this Agreement may be limited under applicable law, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of by the cardioCORE Acquisition Agreement, all as executed and delivered by all parties theretoCompany of, and the terms and conditions performance by the Company of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lenderits obligations under, by delivering its signature page to this Agreement, shall be deemed the Forward Agreement and any Optional Forward Agreement entered into by the Company on or prior to have acknowledged receipt of, the date of such opinion and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Date.con
Appears in 1 contract
Conditions to Closing. (a) The obligation obligations of each Lender the Parties to enter into and become bound under consummate the transactions contemplated by this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be are subject to the receipt by Agent SPAC obtaining the approval of each agreement, document and instrument of the proposals set forth out in the definitive proxy statement of the SPAC filed with the SEC on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction date of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a) evidence of the consummation of the transactions this Agreement (other than the funding redemption limitation amendment proposal and the adjournment proposal) by the affirmative vote of the Loanholders of the requisite number of the SPAC shares entitled to vote thereon, whether in person or by proxy at the shareholders meeting (or any adjournment or postponement thereof) contemplated by (the Operative Documents including“Meeting”), without limitation, in accordance with the funding organizational documents of any the SPAC and all investments contemplated by the Operative Documents;applicable law.
(b) The name of the payment SPAC (i.e. XPAC Acquisition Corp.) having been changed to a name to be provided by the New Sponsor and the “tickers” under which each of all feesSPAC’s securities trades on Nasdaq having been changed from XPAX, expenses XUAXU and other amounts due and payable under each Financing Document;XPAXW to different “tickers”.
(c) Since December 31The underwriter of the SPAC’s initial public offering shall have waived in writing in full its right to receive the deferred underwriting fee pursuant to the underwriting agreement dated July 29, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;2021.
(d) At the receipt Closing, as certified in a manager’s certificate of the initial Borrowing Base CertificateSponsor addressed to the New Sponsor, prepared as the SPAC shall have paid all outstanding invoices, expenses, liabilities, taxes, debt or other payment obligations of the Closing Date;SPAC incurred prior to the Closing, or such invoices, expenses, liabilities, taxes, debt or other payment obligations have otherwise been waived.
(e) receipt Each of copies, certified as true, complete the existing directors and correct officers of the SPAC shall have resigned and been replaced with directors and officers selected by the Borrowing RepresentativeNew Sponsor, and such appointments shall have become effective in compliance with the requirements of Section 14(f) of the final cardioCORE Acquisition Agreement, complete with all schedules Exchange Act and exhibits thereto, and all material related documents executed and delivered in connection with Rule 14f-1 under the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; andExchange Act.
(f) receipt The New Sponsor and the SPAC shall have obtained and paid for the Extended Policy.
(g) The Joinder shall be been executed by Agent the parties thereto.
(h) The final draft of evidence reasonably satisfactory the Relevant Form 8-K shall be in agreed form to Agent that the cardioCORE Acquisition has reasonable satisfaction of the Parties and arrangements shall have been closed and consummated in accordance made for the Relevant Form 8-K to be filed with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing DateSEC upon Closing.
Appears in 1 contract
Sources: Purchase and Sponsor Handover Agreement (XPAC Acquisition Corp.)
Conditions to Closing. The obligation of each the Lender to enter into and become bound under this Agreement and make the other Financing Documents and, if applicable make any initial Loans requested by Borrowers advance pursuant to be made on the Closing Date, Section 2.1 hereof shall be subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionconditions:
(a) evidence The representations of the consummation Corporation herein shall be true, complete and correct in all material respects on the date hereof and on and as of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared Closing Date as of if made on the Closing Date;
(eb) receipt of copiesOn the Closing Date, certified as truethe Loan Documents shall be in full force and effect, complete assuming due authorization and correct execution by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits other parties thereto, and all material related documents shall not have been amended or supplemented except as may have been agreed to in writing by the Lender;
(c) At or prior to the Closing Date, the Lender shall have received each of the following documents:
(i) This Agreement executed by an authorized officer of the Corporation;
(ii) The Series 2022 Note executed by an authorized officer of the Corporation;
(iii) A certificate, dated the Closing Date, executed by an authorized officer of the Corporation, to the effect that (A) the representations and delivered warranties of the Corporation contained in connection this Agreement are true and correct on the date hereof and on and as of the Closing Date as if made on the Closing Date; (B) the Resolution and this Agreement are in full force and effect and have not been amended or supplemented except as may have been approved in writing by the Lender; (C) the Corporation is not in default with respect to any of its outstanding obligations; and (D) no litigation is pending or, to the best of their knowledge, threatened in any court to restrain or enjoin the execution and delivery of this Agreement or the cardioCORE Acquisition Agreement, all as executed Series 2022 Note or the levy and delivered by all parties thereto, and the terms and conditions of all collection of the foregoing shall be satisfactory to Agent Economic Development Sales and Lenders Use Tax or the pledge thereof, or contesting or affecting the adoption and their respective counsel in their sole discretion; and
(f) receipt by Agent validity of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with Resolution or the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the authorization, execution and delivery of the cardioCORE Acquisition Agreement. Each LenderLoan Documents, or contesting the powers of the Board of Directors of the Corporation;
(iv) Certified copies of resolutions of the City and the Corporation authorizing execution, delivery and performance of all of the Loan Documents and authorizing the borrowing hereunder, along with such certificates of existence, certificates of good standing and other certificates or documents as the Lender may reasonably require to evidence the Corporation’s authority;
(v) True copies of all organizational documents of the Corporation, including all amendments, restatements or supplements thereto;
(vi) An opinion of counsel to the Corporation which shall specifically provide that (1) the Corporation is a validly existing non-profit corporation created by delivering its signature page the City of ▇▇▇▇▇ pursuant to this AgreementChapter 504 of the Act and (2) the Corporation is duly authorized and empowered to execute, shall be deemed to have acknowledged receipt of, deliver and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on perform the Closing DateLoan Documents.
Appears in 1 contract
Sources: Loan Agreement
Conditions to Closing. The obligation effectiveness of each Lender to enter into and become bound under this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be is subject to the receipt by satisfaction of the following conditions: The Agent shall have received the following, each dated as of each agreementthe Closing Date (unless otherwise indicated), document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to the Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a) evidence receipt of the consummation an executed counterpart of the transactions this Agreement;
(other than the funding b) if requested by any Lender, receipt of the Loan) contemplated by the Operative Documents a duly executed Note for such Lender (including, without limitation, the funding of any and all investments contemplated Swingline Note if requested by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing DocumentSwingline Lender);
(c) Since receipt of opinions of (i) ▇▇▇▇▇▇ Law Firm, P.A., counsel for the Borrower and (ii) the General Counsel or an Assistant General Counsel to the Borrower, substantially in the forms of Exhibit B-1 and B-2, hereto, respectively, and covering such additional matters relating to the transactions contemplated hereby as the Lenders may reasonably request;
(d) receipt of a certificate signed by a principal financial or accounting officer of the Borrower, to the effect that (i) no Default or Event of Default has occurred and is continuing as of the Closing Date, (ii) since December 31, 2011, there has been no developmentchange or changes in the business, eventassets, actliabilities, operations, condition (financial or occurrence otherwise) or prospects of any nature that has occurred that has had the Borrower on a consolidated basis, or couldin the facts and information regarding such entities which alone, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect;
Effect and (diii) the receipt representations and warranties of the initial Borrowing Base Certificate, prepared Borrower contained in Article IV hereof are true in all material respects as of the Closing Datedate hereof;
(e) receipt of copiesall documents which the Agent and the Lenders may reasonably request relating to the existence of the Borrower, certified as truethe corporate authority for and the validity of this Agreement and the other Loan Documents and any other matters relevant hereto, complete all in form and correct substance satisfactory to the Agent and the Lenders, including without limitation a certificate of incumbency of the Borrower, signed by the Borrowing Representative, Secretary or an Assistant Secretary of the final cardioCORE Acquisition Borrower, certifying as to the names, true signatures and incumbency of the officer or officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party and certified copies of the following items: (i) the Borrower’s Restated Articles of Incorporation, (ii) the Borrower’s By-laws, (iii) a certificate of the Secretary of State of the State of South Carolina as to the existence of the Borrower as a South Carolina corporation, and (iv) the action taken by the Board of Directors of the Borrower authorizing the Borrower’s execution, delivery and performance of this Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, Notes and the terms and conditions of all of other Loan Documents to which the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; andBorrower is a party;
(f) receipt by the Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed Borrower shall have irrevocably terminated all commitments, or otherwise amended and consummated restated any such commitment in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered its entirety in connection with herewith, other than those commitments relating to the execution Existing Letters of Credit, which shall have been deemed issued pursuant to the terms hereof and delivery of those commitments under the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to LEGAL02/33558006v8 Existing Credit Agreement that constitute Commitments under this Agreement, and indefeasibly paid in full all amounts due under the Existing Credit Agreement (or such amounts shall be deemed outstanding under this Agreement pursuant to have acknowledged Section 7.14 hereof);
(g) receipt of, by the Agent (for its own account and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or the account of the Lenders, as applicable, ) of all fees required to be received in connection with this Agreement on or before such Closing Date;
(h) receipt and satisfactory review by the Agent and the Lenders of such financial information regarding the Borrower and its subsidiaries as may be reasonably requested;
(i) receipt of such other documents as the Agent and the Lenders may reasonably request;
(j) receipt by the Agent of a Notice of Account Designation specifying the account or accounts to which the proceeds of any Loans made on or after the Closing DateDate are to be disbursed; and
(k) receipt by the Agent of evidence satisfactory to the Agent that the Borrower has received all regulatory approvals required in connection with obtaining the refinancing provided for in this Agreement.
Appears in 1 contract
Conditions to Closing. The obligation several obligations of each Lender the Underwriters to enter into purchase and become bound pay for the Capital Securities will be subject to the following conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 4(a); and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under this Agreement the Securities Act or proceedings therefor initiated or threatened by the Commission; and any request of the other Financing Documents andCommission for inclusion of additional information in the Registration Statement or the Prospectus shall have been complied with and there shall not have come to the attention of the Underwriters any facts that would cause the Underwriters to believe that the Prospectus, if applicable make any initial Loans requested by Borrowers at the time it was required to be made delivered to a purchaser of the Capital Securities, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements made, in light of the circumstances existing at such time, not misleading.
(b) The Underwriters shall have received, on the Closing Date, shall be subject a certificate signed by the Chairman of the Board, the President, a Vice Chairman of the Board or any Executive or Senior Vice President and the principal financial or accounting officer of the Corporation, dated the Closing Date, to the receipt by Agent effect that the signers of each agreement, document such certificate have carefully examined the Registration Statement and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form this Agreement and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionthat:
(ai) evidence the representations and warranties of the consummation Corporation in this Agreement are true and correct in all material respects on and as of the transactions Closing Date with the same effect as if made on the Closing Date and the Corporation has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(other than ii) since the funding date of the Loan) contemplated by most recent financial statements included in the Operative Documents including, without limitation, the funding Registration Statement (exclusive of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011supplement thereto), there has been no developmentmaterial adverse change in the condition (financial or other), eventearnings, actbusiness or properties of the Corporation and its subsidiaries taken as a whole, condition whether or occurrence not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement (exclusive of any nature that has occurred that has had or couldsupplement thereto).
(c) Subsequent to the date hereof or, either individually or if earlier, the dates as of which information is given in the aggregateRegistration Statement (exclusive of any amendment thereof), reasonably be expected there shall not have been any change, or any development involving a prospective change, in or affecting the business or properties of the Corporation and its subsidiaries the effect of which is, in the judgment of the Underwriters, so material and adverse as to have a Material Adverse Effect;make it impractical or inadvisable to proceed with the offering or the delivery of the Capital Securities as contemplated by the Registration Statement (exclusive of any amendment thereof).
(d) the receipt of the initial Borrowing Base CertificateThe Underwriters shall have received an opinion, prepared as of dated the Closing Date;, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, substantially in the form attached hereto as Exhibit A. In rendering such opinion, counsel may state that they are passing only on matters of New York and United States Federal law. In rendering such opinion, counsel may rely upon an opinion or opinions, each dated the Closing Date, of other counsel retained by them or the Corporation as to laws of any jurisdiction other than the United States or the State of New York, provided that (A) such reliance is expressly authorized by each opinion so relied upon and a copy of each such opinion is delivered to the Underwriters, and (B) counsel shall state in their opinion that they and the Underwriters are justified in relying thereon. Insofar as such opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Corporation, its subsidiaries and the Trust and certificates of public officials.
(e) receipt of copiesThe Underwriters shall have received an opinion, certified as true, complete and correct by dated the Borrowing RepresentativeClosing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel to the final cardioCORE Acquisition AgreementCorporation, complete with all schedules substantially in the form attached hereto as Exhibit B. In rendering such opinion, such counsel may state that he is passing only on matters of New York and exhibits theretoUnited States Federal law. Insofar as such opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Corporation, its subsidiaries and the Trust and certificates of public officials.
(f) The Underwriters shall have received an opinion, dated the Closing Date, of White & Case, counsel to the Trust Company and Trust Delaware, substantially in the form attached hereto as Exhibit C.
(g) The Underwriters shall have received an opinion, dated the Closing Date, of Cravath, Swaine & ▇▇▇▇▇, counsel to the Underwriters as to such matters as the Underwriters shall reasonably request. In rendering such opinion, counsel may rely upon an opinion or opinions, each dated the Closing Date, of other counsel retained by them or the Corporation as to laws of any jurisdiction other than the United States or the State of New York, provided that (A) such reliance is expressly authorized by each opinion so relied upon and a copy of each such opinion is delivered to the Underwriters, and all material related (B) counsel shall state in their opinion that they believe that they and the Underwriters are justified in relying thereon. Insofar as such opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Corporation, its subsidiaries and the Trust and certificates of public officials.
(h) The Underwriters shall have received an opinion, dated the Closing Date, of Morris, Nichols, Arsht & ▇▇▇▇▇▇▇ , special Delaware counsel to the Corporation and the Trust, substantially to the effect and in the form attached hereto as Exhibit D.
(i) The Capital Securities shall have received a rating from each of ▇▇▇▇▇'▇ Investor Service, Inc. and Standard & Poor's Rating Services, each such rating to be not less than the rating set forth in the Registration Statement.
(j) The Underwriters shall have received on the Closing Date a letter, dated the Closing Date, in form and substance reasonably satisfactory to them, from Price Waterhouse LLP independent public accountants, containing statements and information of the type ordinarily included in accounts "comfort letters" to underwriters with respect to the financial statements and certain financial information, including the financial information contained or incorporated by reference in the Registration Statement as identified by you.
(k) Prior to the Closing Date, the Corporation shall have furnished to the Underwriters such further information, certificates and documents executed and delivered as the Underwriters may reasonably request in connection with the execution and delivery offering of the cardioCORE Acquisition AgreementCapital Securities.
(l) No downgrading in the rating accorded the Capital Securities or any other debt securities of the Corporation by any "nationally recognized statistical rating organization" (as that term is defined by the SEC for the purposes of Rule 436(g)(2) under the Securities Act) shall have occurred, all as executed and delivered by all parties theretoor any public announcement that any such organization has under surveillance or review their ratings of the Capital Securities or any other debt securities of the Corporation (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating), and if, in any such case, the terms and conditions of all effect thereof in the reasonable judgment of the foregoing shall be satisfactory Underwriters makes it impracticable or inadvisable to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance proceed with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery purchase of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing DateCapital Securities.
Appears in 1 contract
Conditions to Closing. The obligation Underwriters have entered into this Certificate Purchase Agreement in reliance upon the representations and agreements of each Lender to enter into the Corporation and become bound the School Board herein and the performance by the Corporation and the School Board of their obligations hereunder, both as of the date hereof and as of the date of the Closing. The Underwriters’ obligations under this Certificate Purchase Agreement are and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall will be subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionfurther conditions:
(a) evidence at the time of the consummation Closing (i) each of the transactions Corporation Documents and the School Board Documents will be in full force and effect and will not have been amended, modified or supplemented except as may have been agreed to in writing by the Manager,
(other than ii) the funding proceeds of the Loansale of the Series 2019A Certificates will be applied as described in the Offering Statement, and (iii) the School Board and the Corporation will have duly adopted and there shall be in full force and effect such resolutions as, in the opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, P.A. and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A. (collectively, “Co-Special Tax Counsel”) and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.A. and Virtus LLP, as co- counsel for the Underwriters (collectively, “Co-Underwriters’ Counsel”), shall be necessary to effectuate the transactions contemplated hereby and by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative DocumentsOffering Statement;
(b) the payment Underwriters shall have the right to cancel their obligations to purchase the Series 2019A Certificates, by notice from the Manager to the Corporation and School Board of all feesits election to do so, expenses if between the date hereof and other amounts due and payable under each Financing Document;the Closing:
(ci) Since December 31legislation shall have been enacted by the Congress of the United States or adopted by either House thereof or favorably reported for passage to either House of the Congress by any committee of such House to which such legislation shall have been referred for consideration, 2011or enacted by the Florida Legislature or adopted by either House thereof or favorably reported for passage to either House of the Florida Legislature by any committee of such House to which such legislation shall have been referred for consideration, there has or a decision shall have been no developmentrendered by a court of the United States or of the State of Florida or by the Tax Court of the United States, eventor any stop order, actrelease, condition regulation or occurrence no-action letter by or on behalf of the Securities and Exchange Commission or any other governmental agency having jurisdiction, shall occur or be introduced, enacted or adopted, or a ruling or an official statement shall have been made or a regulation shall have been proposed or made by or on behalf of the Treasury Department of the United States or the Internal Revenue Service or other federal or Florida authority, with respect to federal or Florida taxation upon revenues or other income of the general character to be derived by the Corporation or by any similar body, or upon interest on obligations of the general character of the Series 2019A Certificates, the Series 2004 Ground Lease, the Series 2004-1 Lease, or the tax treatment thereof for federal income tax purposes, or (in the case of Florida authorities only) with respect to Florida taxation on such Series 2004-1 Lease or on the Series 2019A Certificates as intangible personal property, or other action or events shall have transpired that, in the reasonable judgment of the Underwriters, would have the purpose or effect, directly or indirectly, of changing the federal income tax consequences or Florida tax consequences of any nature that has occurred that has had of the transactions contemplated in connection herewith, and that, in the reasonable judgment of the Underwriters, affects materially and adversely the market price or couldthe marketability of the Series 2019A Certificates or the ability of the Underwriters to enforce contracts for the sale of the Series 2019A Certificates; or
(ii) any event shall have occurred, or any condition shall exist that, in the reasonable judgment of the Underwriters, either individually (A) makes untrue or incorrect in any material respect any statement or information contained in the Offering Statement or (B) is not reflected in the Offering Statement but should be reflected therein in order to make the statements and the information contained therein, in light of the circumstances under which they were made, not misleading in any material respect; or
(iii) there shall have occurred any outbreak or escalation of hostilities, or declaration of war by the United States, or other local, national or international emergency, calamity or crisis, including financial crisis, the effect of which on the financial markets of the United States, in the sole judgment of the Underwriters, is such as to make the offering or delivery of the Series 2019A Certificates, as contemplated by the Offering Statement, impractical or inadvisable; or
(iv) there shall be in force a general suspension of trading on the New York Stock Exchange or minimum or maximum prices for trading shall have been fixed and be in force, or maximum ranges for prices of securities shall have been required and be in force on the New York Stock Exchange, or by order of the Securities and Exchange Commission or any other governmental authority having jurisdiction, or there shall be in force a suspension of trading in any outstanding securities of the School Board or the Corporation; or
(v) a general banking moratorium shall have been declared by federal, Florida or New York authorities having jurisdiction and be in force, or any new restriction on transactions in securities materially affecting the free market for securities such as the Series 2019A Certificates (including the imposition of any limitation on interest rates) or the extension of credit by, or a change to the net capital requirements of, underwriters established by the New York Stock Exchange, the Securities and Exchange Commission, any other federal or Florida agency or the Congress of the United States, or by executive order, which, in the reasonable judgment of the Underwriters, materially and adversely impairs the marketability or market price of the Series 2019A Certificates; or
(vi) legislation shall be enacted, or a decision by a court of the United States shall be rendered that, in the opinion of Co-Underwriters’ Counsel, has the effect of requiring the contemplated distribution of the Series 2019A Certificates or any action or instrument pertaining thereto to be registered under the Securities Act of 1933, as amended, or under Florida law, or of requiring either of the Trust Agreements, or any instrument or act pertaining thereto, to be qualified under the Trust Indenture Act of 1939, as amended; or
(vii) there shall have been any materially adverse change in the affairs of the School Board that, in the reasonable judgment of the Underwriters, materially and adversely affects the market price or marketability of the Series 2019A Certificates or the ability of the Underwriters to enforce contracts for the sale of the Series 2019A Certificates; or
(viii) a supplement or amendment shall have been made to the Offering Statement subsequent to the date hereof that in the reasonable judgment of the Underwriters, materially and adversely affects the market price or the marketability of the Series 2019A Certificates or the ability of the Underwriters to enforce contracts for the sale of the Series 2019A Certificates; or
(ix) Any litigation shall be instituted or be pending at the time of the Closing to restrain or enjoin the issuance, sale or delivery of the Series 2019A Certificates, or in any way contesting or affecting any authority for or the aggregatevalidity of the proceedings authorizing and approving the Act, reasonably be expected the Corporation Resolution, the Board Resolution, the Corporation Documents or the existence or powers of the Corporation or the School Board, with respect to have a Material Adverse Effect;its obligations under the Corporation Documents; or
(dx) the receipt A reduction or withdrawal in any of the initial Borrowing Base Certificateassigned ratings, prepared or, as of the Closing Date;
(e) receipt of copiesClosing, certified as true, complete and correct the failure by the Borrowing Representative, any of the final cardioCORE Acquisition Agreementrating agencies to assign the ratings, complete with all schedules to the Series 2019A Certificates: the long-term ratings assigned on the Series 2019A Certificates of “ ” and exhibits thereto“ ” issued, respectively, by ▇▇▇▇▇'▇ Investors Service, Inc. (“Moody's”) and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretionFitch Ratings (“Fitch”); and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Date.
Appears in 1 contract
Sources: Certificate Purchase Agreement
Conditions to Closing. The obligation Unless waived by the Managers, (i) the several obligations of the Underwriters to purchase the Firm Shares, and the obligations of each Lender Forward Seller to enter into deliver and become bound under this sell the Borrowed Firm Shares, are subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the date of the Underwriting Agreement and the other Financing Documents and, Closing Date (as if applicable make any initial Loans requested by Borrowers to be made on the Closing Date), shall be and (ii) the several obligations of the Underwriters to purchase any Optional Securities, and the obligations of each Forward Seller to deliver and sell any Borrowed Optional Securities, are subject to the receipt by Agent accuracy of each agreement, document the representations and instrument set forth warranties on the closing checklist prepared by Agent or its counselpart of the Company contained herein as of the date of the Underwriting Agreement, each in form the Closing Date (as if made on the Closing Date) and substance satisfactory to Agentany Option Closing Date up to, and including, the Option Closing Date applicable to such other closing deliverables reasonably requested Optional Securities, and, in each case, the performance by Agent and Lendersthe Company of all of the obligations to be performed by it under this Agreement on or prior to the Closing Date or applicable Option Closing Date, as the case may be, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionconditions:
(a) evidence Subsequent to the Applicable Time and prior to the Closing Date or the applicable Option Closing Date, as the case may be, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the securities of the Company by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act.
(b) No stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission, and there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business, properties or operations of the Company and its consolidated subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus (exclusive of any amendments or supplements thereto effective after the date of the Underwriting Agreement), that, in the judgment of the Managers, is material and adverse and that makes it, in the judgment of the Managers, impracticable or inadvisable to market or deliver the Offered Securities on the terms and in the manner contemplated in the Time of Sale Prospectus; and the Managers shall have received, on the Closing Date or the applicable Option Closing Date, as the case may be, a certificate, dated the Closing Date or the applicable Option Closing Date, as the case may be, and signed by either the chief executive officer or chief financial officer of the Company, to the foregoing effect. Such certificate will also provide that the representations and warranties of the Company contained herein are true and correct as of the Closing Date or the applicable Option Closing Date, as the case may be, and that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date or the applicable Option Closing Date, as the case may be. The officer making such certificate may rely upon the best of his knowledge as to proceedings threatened.
(c) Each Forward Seller, each Forward Counterparty and the Managers shall have received on the Closing Date or the applicable Option Closing Date, as the case may be, an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President, General Counsel and Corporate Secretary of the Company (or another lawyer of the Company reasonably satisfactory to the Underwriters, each such Forward Seller and each such Forward Counterparty), dated the Closing Date or the applicable Option Closing Date, as the case may be, addressed to each Forward Seller, each Forward Counterparty and the Managers to the effect that:
(i) each of the Company and Kansas Gas and Electric Company (the “Principal Subsidiary”) has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Kansas and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification (except where the failure to so qualify would not have a material adverse effect upon the business or financial condition of the Company and its subsidiaries, as a whole);
(ii) the Company has an authorized capitalization as set forth in the Time of Sale Prospectus and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) all of the issued shares of capital stock of the Principal Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and (except for directors’ qualifying shares and except as otherwise set forth in the Time of Sale Prospectus and the Prospectus) are owned directly and indirectly by the Company, free and clear of all liens, encumbrances, equities and claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that he believes that both the Managers and he are justified in relying upon such opinions and certificates);
(iv) any Company Securities have been duly authorized by the Company, and, when executed and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable;
(v) this Agreement, each Forward Agreement and any Optional Forward Agreement entered into by the Company on or prior to the date of such opinion have been duly authorized, executed and delivered by the Company;
(vi) except as rights to indemnity and contribution under this Agreement may be limited under applicable law, the execution, delivery and performance of this Agreement, each Forward Agreement and any Optional Forward Agreement entered into by the Company on or prior to the date of such opinion and the issuance and sale of any Company Securities (in the case of Company Securities) and the consummation of the transactions (other than the funding contemplated herein and therein will not contravene any provision of applicable law of the Loan) United States (including laws relating specifically to electric utility companies and the electric utility industry), or of the State of Kansas that in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the type contemplated by this Agreement, or, to the Operative Documents includingbest knowledge of such counsel, without limitation, the funding of any other state or jurisdiction of the United States, or the articles of incorporation or by-laws (or similar organizational document) of the Company or, to the best knowledge of such counsel, any material agreement or other material instrument binding upon the Company, and, except for any opinion as to federal and all investments state securities or Blue Sky laws (as to which such counsel is not called upon to express any opinion), no consent, approval or authorization of any governmental body or agency under the laws of the State of Kansas or any federal law of the United States (except with respect to consents, approvals and authorizations relating specifically to the public utility companies or the utilities industry, as to which such counsel is not called upon to express any opinion) that in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the type contemplated by this Agreement or, to the Operative Documentsbest knowledge of such counsel, of any other state or jurisdiction of the United States or of any foreign jurisdiction is required for the performance by the Company of its obligations under this Agreement, each Forward Agreement or any Optional Forward Agreement entered into by the Company on or prior to the date of such opinion;
(bvii) each of the payment Company and the Principal Subsidiary possesses valid franchises, certificates of all feesconvenience and authority, expenses licenses and other amounts due and payable under each Financing Document;
(c) Since December 31permits authorizing it to carry on the electric utility business in which it is engaged, 2011except in the cases that the failure to possess such franchises, there has been no developmentcertificates, eventlicenses or permits, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, would not be reasonably expected to have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole, and neither the Company nor the Principal Subsidiary has received any notice of proceedings relating to the revocation or modification of any such franchise, certificate of convenience and authority, license or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effectmaterial adverse effect, except as set forth in or contemplated in the Time of Sale Prospectus and the Prospectus;
(viii) the statements (A) in Item 3 of the Company’s most recent Annual Report on Form 10-K incorporated by reference in the Time of Sale Prospectus and the Prospectus, (B) in Part II, Item 1 under the caption “Legal Proceedings” of the Company’s most recent Quarterly Report on Form 10-Q incorporated by reference in the Time of Sale Prospectus and the Prospectus and (C) in the Registration Statement in Item 15, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings;
(ix) such counsel does not know of any legal or governmental proceeding pending or threatened (including, without limitation, proceeding pending before the State Corporation Commission of the State of Kansas (“KCC”) or Federal Energy Regulatory Commission (“FERC”)) to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject which is required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and is not so described, or of any contract, other document, public utility law or regulation which is required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required;
(x) the Company has complied with K.S.A. § 66-125 with respect to the issuance of the Company Securities, if any; no additional consent, approval, authorization, filing with or order of (a) FERC under the Federal Power Act, (b) the KCC or (c) to such counsel’s knowledge, any court or governmental agency or body is required in connection with the transactions contemplated herein, in each Forward Agreement or in any Optional Forward Agreement entered into by the Company on or prior to the date of such opinion, except such as have been obtained under the Securities Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Time of Sale Prospectus; and
(xi) the statements in the prospectus supplement contained in the Time of Sale Prospectus and the Prospectus under “Description of Capital Stock,” insofar as such statements constitute a summary of the legal matters or documents referred to therein, fairly present the information called for with respect to such legal matters and documents. Such counsel shall also state that nothing has come to his attention that causes him to believe that (a) on the date of this Agreement, the Registration Statement (including documents incorporated by reference therein and the information deemed to be part of the Registration Statement at the time of effectiveness pursuant to Rule 430B under the Securities Act) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (b) at the Applicable Time, the Time of Sale Prospectus contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (c) the Prospectus as of its date or as amended or supplemented, if applicable, at the Closing Date or the applicable Option Closing Date, as the case may be, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. With respect to the preceding paragraph, such counsel may state that he has not been called upon to pass upon, and that he expresses no view regarding, the financial statements or financial schedules or statistical data derived therefrom or other accounting or financial data included in the Registration Statement, the Time of Sale Prospectus or the Prospectus, and that his opinion and belief is based upon his participation in the preparation of the Registration Statement, Time of Sale Prospectus, Prospectus (as amended or supplemented) and the documents incorporated therein by reference and review and discussion of the contents thereof, but is without independent check or verification except as specified. In expressing his opinion as to questions of the law of jurisdictions other than the State of Kansas and the United States, such counsel may rely to the extent reasonable on such counsel as may be reasonably acceptable to counsel to the Underwriters. In addition, such counsel may reasonably rely as to questions of fact on certificates of responsible officers of the Company.
(d) Each Forward Seller, each Forward Counterparty and the receipt of the initial Borrowing Base Certificate, prepared as of Managers shall have received on the Closing Date or the applicable Option Closing Date, as the case may be, an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Company, dated the Closing Date or the applicable Option Closing Date, as the case may be, to the effect that:
(i) the Company is not, and after giving effect to (a) the transactions contemplated by this Agreement and (b) entry into each Forward Agreement and any Optional Forward Agreement entered into by the Company on or prior to the date of such opinion, will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(eii) receipt of copiesexcept as rights to indemnity and contribution under this Agreement may be limited under applicable law, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of by the cardioCORE Acquisition Agreement, all as executed and delivered by all parties theretoCompany of, and the terms and conditions performance by the Company of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lenderits obligations under, by delivering its signature page to this Agreement, shall be deemed each Forward Agreement and any Optional Forward Agreement entered into by the Company on or prior to have acknowledged receipt the date of such opinion and the consummation of the transactions contemplated herein and therein will not contravene any provision of the laws of the State of New York or any federal law of the United States of America (except with respect to laws relating specifically to public utility companies or the utilities industry, as to which such counsel is not called upon to express any opinion) that in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the type contemplated by this Agreement, each Forward Agreement and any Optional Forward Agreement entered into by the Company on or prior to the date of such opinion; provided that such counsel need not express an opinion as to federal or state securities laws;
(iii) no consent, approval, authorization, or order of, and consented or qualification with, any governmental body or agency under the laws of the State of New York or any federal law of the United States of America (except with respect to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required laws relating specifically to be approved by Agent, Required Lenders public utility companies or Lendersthe utilities industry, as applicable, on the Closing Date.to which such counsel is not called upon to express any opinion) that in su
Appears in 1 contract
Conditions to Closing. The obligation Underwriters have entered into this Certificate Purchase Agreement in reliance upon the representations and agreements of each Lender to enter into the Corporation and become bound the School Board herein and the performance by the Corporation and the School Board of their obligations hereunder, both as of the date hereof and as of the date of the Closing. The Underwriters’ obligations under this Certificate Purchase Agreement are and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall will be subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionfurther conditions:
(a) evidence at the time of the consummation Closing (i) each of the transactions Corporation Documents and the School Board Documents will be in full force and effect and will not have been amended, modified or supplemented except as may have been agreed to in writing by the Manager,
(other than ii) the funding proceeds of the Loansale of the Series 2019B Certificates will be applied as described in the Offering Statement, and (iii) the School Board and the Corporation will have duly adopted and there shall be in full force and effect such resolutions as, in the opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, P.A. and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A. (collectively, “Co-Special Tax Counsel”) and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.A. and Virtus LLP, as co- counsel for the Underwriters (collectively, “Co-Underwriters’ Counsel”), shall be necessary to effectuate the transactions contemplated hereby and by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative DocumentsOffering Statement;
(b) the payment Underwriters shall have the right to cancel their obligations to purchase the Series 2019B Certificates, by notice from the Manager to the Corporation and School Board of all feesits election to do so, expenses if between the date hereof and other amounts due and payable under each Financing Document;the Closing:
(ci) Since December 31legislation shall have been enacted by the Congress of the United States or adopted by either House thereof or favorably reported for passage to either House of the Congress by any committee of such House to which such legislation shall have been referred for consideration, 2011or enacted by the Florida Legislature or adopted by either House thereof or favorably reported for passage to either House of the Florida Legislature by any committee of such House to which such legislation shall have been referred for consideration, there has or a decision shall have been no developmentrendered by a court of the United States or of the State of Florida or by the Tax Court of the United States, eventor any stop order, actrelease, condition regulation or occurrence no-action letter by or on behalf of the Securities and Exchange Commission or any other governmental agency having jurisdiction, shall occur or be introduced, enacted or adopted, or a ruling or an official statement shall have been made or a regulation shall have been proposed or made by or on behalf of the Treasury Department of the United States or the Internal Revenue Service or other federal or Florida authority, with respect to federal or Florida taxation upon revenues or other income of the general character to be derived by the Corporation or by any similar body, or upon interest on obligations of the general character of the Series 2019B Certificates, the Series 2006 Ground Lease, the Series 2006-1 Lease, or the tax treatment thereof for federal income tax purposes, or (in the case of Florida authorities only) with respect to Florida taxation on such Series 2006-1 Lease or on the Series 2019B Certificates as intangible personal property, or other action or events shall have transpired that, in the reasonable judgment of the Underwriters, would have the purpose or effect, directly or indirectly, of changing the federal income tax consequences or Florida tax consequences of any nature that has occurred that has had of the transactions contemplated in connection herewith, and that, in the reasonable judgment of the Underwriters, affects materially and adversely the market price or couldthe marketability of the Series 2019B Certificates or the ability of the Underwriters to enforce contracts for the sale of the Series 2019B Certificates; or
(ii) any event shall have occurred, or any condition shall exist that, in the reasonable judgment of the Underwriters, either individually (A) makes untrue or incorrect in any material respect any statement or information contained in the Offering Statement or (B) is not reflected in the Offering Statement but should be reflected therein in order to make the statements and the information contained therein, in light of the circumstances under which they were made, not misleading in any material respect; or
(iii) there shall have occurred any outbreak or escalation of hostilities, or declaration of war by the United States, or other local, national or international emergency, calamity or crisis, including financial crisis, the effect of which on the financial markets of the United States, in the sole judgment of the Underwriters, is such as to make the offering or delivery of the Series 2019B Certificates, as contemplated by the Offering Statement, impractical or inadvisable; or
(iv) there shall be in force a general suspension of trading on the New York Stock Exchange or minimum or maximum prices for trading shall have been fixed and be in force, or maximum ranges for prices of securities shall have been required and be in force on the New York Stock Exchange, or by order of the Securities and Exchange Commission or any other governmental authority having jurisdiction, or there shall be in force a suspension of trading in any outstanding securities of the School Board or the Corporation; or
(v) a general banking moratorium shall have been declared by federal, Florida or New York authorities having jurisdiction and be in force, or any new restriction on transactions in securities materially affecting the free market for securities such as the Series 2019B Certificates (including the imposition of any limitation on interest rates) or the extension of credit by, or a change to the net capital requirements of, underwriters established by the New York Stock Exchange, the Securities and Exchange Commission, any other federal or Florida agency or the Congress of the United States, or by executive order, which, in the reasonable judgment of the Underwriters, materially and adversely impairs the marketability or market price of the Series 2019B Certificates; or
(vi) legislation shall be enacted, or a decision by a court of the United States shall be rendered that, in the opinion of Co-Underwriters’ Counsel, has the effect of requiring the contemplated distribution of the Series 2019B Certificates or any action or instrument pertaining thereto to be registered under the Securities Act of 1933, as amended, or under Florida law, or of requiring either of the Trust Agreements, or any instrument or act pertaining thereto, to be qualified under the Trust Indenture Act of 1939, as amended; or
(vii) there shall have been any materially adverse change in the affairs of the School Board that, in the reasonable judgment of the Underwriters, materially and adversely affects the market price or marketability of the Series 2019B Certificates or the ability of the Underwriters to enforce contracts for the sale of the Series 2019B Certificates; or
(viii) a supplement or amendment shall have been made to the Offering Statement subsequent to the date hereof that in the reasonable judgment of the Underwriters, materially and adversely affects the market price or the marketability of the Series 2019B Certificates or the ability of the Underwriters to enforce contracts for the sale of the Series 2019B Certificates; or
(ix) Any litigation shall be instituted or be pending at the time of the Closing to restrain or enjoin the issuance, sale or delivery of the Series 2019B Certificates, or in any way contesting or affecting any authority for or the aggregatevalidity of the proceedings authorizing and approving the Act, reasonably be expected the Corporation Resolution, the Board Resolution, the Corporation Documents or the existence or powers of the Corporation or the School Board, with respect to have a Material Adverse Effect;its obligations under the Corporation Documents; or
(dx) the receipt A reduction or withdrawal in any of the initial Borrowing Base Certificateassigned ratings, prepared or, as of the Closing Date;
(e) receipt of copiesClosing, certified as true, complete and correct the failure by the Borrowing Representative, any of the final cardioCORE Acquisition Agreementrating agencies to assign the ratings, complete with all schedules to the Series 2019A Certificates: the long-term ratings assigned on the Series 2019A Certificates of “ ” and exhibits thereto“ ” issued, respectively, by ▇▇▇▇▇'▇ Investors Service, Inc. (“Moody's”) and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretionFitch Ratings (“Fitch”); and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Date.
Appears in 1 contract
Sources: Certificate Purchase Agreement
Conditions to Closing. The obligation of each Lender to enter Treasurer has entered into and become bound under this Agreement in reliance upon the Issuer’s representations and agreements herein and the other Financing Documents andperformance by the Issuer of its obligations hereunder, if applicable make any initial Loans requested by Borrowers to be made on both as of the Closing date hereof and as of the Renewal Date, . The Treasurer’s obligations under Section 2.01 and Article III of this Agreement are and shall be subject to the receipt following further conditions (any or all of which may be waived by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or Treasurer in its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:):
(a) evidence At the Renewal Date, the Issuer shall have duly passed and there shall be in full force and effect such legislation as, in the opinion of the consummation of a nationally recognized bond counsel, shall be necessary in connection with the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documentshereby;
(b) The Treasurer shall have the payment right to cancel its obligation under Section 2.01(b) and Article III herein to purchase the Renewal Notes if any of all feesthe documents, expenses certificates or opinions to be delivered to the Treasurer hereunder is not delivered on the Renewal Date, or if, between the date hereof and the Renewal Date, legislation shall have been enacted by the Congress of the United States to become effective on or prior to the Renewal Date, or a decision of a court of the United States shall be rendered, or a stop order, ruling, regulation or proposed regulation by or on behalf of the Securities and Exchange Commission or other amounts due agency having jurisdiction over the subject matter shall be issued or made, to the effect that the issuance, sale and payable under each Financing Document;delivery of the Renewal Notes, or any other obligations of any similar public body of the general character of the Issuer, is in violation of the Securities Act of 1933, as amended (the “1933 Act”), or with the purpose or effect of otherwise prohibiting the issuance, sale or delivery of the Renewal Notes as contemplated hereby or of obligations of the general character of the Renewal Notes; and
(c) Since December 31On the Renewal Date, 2011, there has been no development, event, act, condition the Treasurer shall receive the following documents:
(1) One executed or occurrence certified copy of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse EffectRenewal Note Legislation;
(d2) the receipt of the initial Borrowing Base CertificateA certificate, prepared dated as of the Closing Renewal Date, duly executed by the fiscal officer of the Governing Body to the effect that there are no pending, or to their knowledge, threatened legal proceedings which will materially adversely affect the transactions contemplated hereby or the validity or enforceability of the Renewal Notes;
(e3) receipt One original transcript of copies, certified as true, complete all proceedings relating to the authorization and correct by the Borrowing Representative, issuance of the final cardioCORE Acquisition AgreementRenewal Notes;
(4) An opinion of nationally recognized bond counsel dated the Renewal Date stating that the Renewal Notes have been validly issued, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties theretointerest is excluded from gross income for federal income tax purposes, and the terms and conditions of all of Renewal Notes are exempted from registration under the foregoing shall be satisfactory 1933 Act, each to Agent and Lenders and their respective counsel in their sole discretionthe same extent that interest on the Notes is so excluded; and
(f5) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement Such additional legal opinions, certificates, proceedings, instruments, and other material related documents executed and delivered in connection documents, as the Treasurer or its counsel may reasonably request to evidence compliance by the Issuer with legal requirements relating to the execution and delivery issuance of the cardioCORE Acquisition AgreementRenewal Notes, the truth and accuracy, as of the Renewal Date, of all representations herein contained and the due performance or satisfaction by the Issuer at or prior to such date of all agreements then to be performed and all conditions then to be satisfied as contemplated hereunder. Each Lender, by delivering its signature page to this Agreement, If the Issuer shall be deemed unable to have acknowledged receipt ofsatisfy the conditions to the Treasurer’s obligations contained in this Article III, the Treasurer’s obligations under Section 2.01 shall be terminated and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to the Treasurer’s obligations under Section 2.02 herein shall be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Dateeffected.
Appears in 1 contract
Sources: Standby Note Purchase Agreement
Conditions to Closing. The City’s obligation of each Lender to enter into and become bound under this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on proceed with the Closing Date, shall be is subject to the receipt by Agent Applicant’s fulfillment of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each at or prior to the satisfaction Closing:
a. All representations and warranties of Agent and Lenders and their respective counsel in their sole discretionthe Applicant shall be true as of the Closing.
b. The Applicant shall have delivered to the City:
(a1) evidence Evidence of Good Standing of the consummation Applicant from the Nebraska Secretary of State.
(2) A copy of the transactions (other than the funding current and correct Certificate of Organization and Operating Agreement of the Loan) contemplated Applicant certified by the Operative Documents including, without limitation, members (the funding of any and all investments contemplated by the Operative Documents“Members”) to be correct;
(b3) Certified resolutions of the payment of all feesMembers authorizing this Agreement and providing for signature authority.
c. In order to secure the Loan and the Repayment, expenses and other amounts due and payable under each Financing Document;the Applicant shall have delivered to the City the following:
(c1) Since December 31A guaranty (the “Guaranty”) of ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇. The Guaranty shall be in the form of the attached “Exhibit B”.
(2) A Security Agreement covering the Applicant’s inventory, 2011equipment, accounts, and general intangibles. The Security Agreement shall be in the form of the attached “Exhibit C”.
(3) A Deed of Trust on Lots 1 and 2, Block 7, Laucomer Addition to the City of Scottsbluff, Scotts Bluff County, Nebraska, executed by the owner thereof. The Deed of Trust shall be in the form of attached “Exhibit D.”
d. The Applicant shall in all material respects have performed its obligations, agreements, and covenants contained in this Agreement to be performed by them, on, or before the Closing.
e. The Applicant shall have received a commitment for and closed on a loan from Platt Valley Bank in the amount of at least $350,000, and the loan proceeds have been dispersed to the Applicant or made available to the applicant by Platte Valley Bank.
f. There shall have been no material adverse change in the operation or financial status of the Applicant and the Closing shall constitute the Applicant’s representations that there has been no developmentsuch material adverse change.
g. In requesting the disbursement of the Loan, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected Applicant is considered to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date;
(e) receipt of copies, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent represented that the cardioCORE Acquisition has above conditions have been closed satisfied and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required are continuing to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Datesatisfied.
Appears in 1 contract
Conditions to Closing. As a condition precedent to the Closing, all of the following conditions will have been satisfied:
a. The obligation following documents will have been delivered to Purchaser:
i. This Agreement, executed by Company;
ii. The Registration Rights Agreement, executed by the Company in the form attached hereto as Exhibit 2;
iii. A Secretary’s Certificate in the form attached hereto as Exhibit 3, certifying as to and attaching copies of: (1) the resolutions of each Lender to enter into and become bound under Company’s board of directors authorizing this Agreement and the other Financing Documents Transaction Documents, and the transactions contemplated hereby and thereby, (2) Company’s current Certificate of Incorporation, and (3) Company’s current Bylaws;
iv. Executed Transfer Agent Instructions, in the form attached hereto as Exhibit 4; and
v. The Opinion executed by Company’s counsel in the form attached hereto as Exhibit 5;
b. The representations and warranties of Company in this Agreement will be true and correct in all material respects and Company will have delivered an Officer’s Closing Certificate to such effect to Purchaser, if applicable make any initial Loans requested signed by Borrowers to an officer of Company;
c. The Common Stock will be made listed for and currently trading on the Closing Date, shall be subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to AgentTrading Market, and such other closing deliverables reasonably requested by Agent and Lenders, and to there is no notice of any suspension or delisting with respect the satisfaction trading of the following conditions precedentshares of Common Stock on such Trading Market;
d. There is not then in effect any law, each to rule or regulation prohibiting or restricting the satisfaction transactions contemplated in this Agreement or any other Transaction Document, or requiring any consent or approval which will not have been obtained, nor is there any pending or threatened proceeding or investigation which may have the effect of Agent and Lenders and their respective counsel in their sole discretion:
(a) evidence of the consummation prohibiting or adversely affecting any of the transactions (contemplated by this Agreement; no statute, rule, regulation, executive order, decree, ruling or injunction will have been enacted, entered, promulgated or adopted by any court or governmental authority of competent jurisdiction that prohibits the transactions contemplated by this Agreement, and no actions, suits or proceedings will be in progress, pending or, to Company’s knowledge threatened, by any person, other than Purchaser or any Affiliate of Purchaser, that seek to enjoin or prohibit the funding of the Loan) transactions contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date;
(e) receipt of copies, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition this Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent e. Company has a sufficient number of evidence reasonably satisfactory duly authorized shares of Common Stock reserved for issuance in such amount as may be required to Agent that fulfill its obligations pursuant to the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery Transaction Documents, including without limitation all Common Shares issuable upon conversion of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing DatePreferred Shares.
Appears in 1 contract
Conditions to Closing. 2.1 The obligation of each Lender Purchaser to enter into and become bound under this Agreement and purchase the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on Shares at the Closing Date, and to perform any other of its obligations hereunder shall be subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent satisfaction or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction waiver of the following conditions precedent, each on or prior to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionClosing Date:
(ai) evidence the representations and warranties of Seller and the Company contained herein shall be true and correct in all material respects at and as of the consummation Closing Date as if made at and as of such date, and Purchaser shall have received a certificate of an officer of Seller and a certificate of an officer of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative DocumentsCompany to such effect;
(bii) Seller and the payment Company shall each have performed and complied with their respective agreements set forth herein that are required to be performed or complied with by them on or prior to the Closing Date, and Purchaser shall have received a certificate of all fees, expenses an officer of Seller and other amounts due and payable under each Financing Documenta certificate of an officer of the Company to such effect;
(ciii) Since December 31all consents, 2011approvals or other actions by, there has or notices to, or filings with, any governmental authority or any other person or entity, necessary or required in connection with the execution, delivery or performance by Seller and the Company of this Agreement and the transactions contemplated hereby shall have been no developmentobtained and be in full force and effect, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to and Purchaser shall have a Material Adverse Effectbeen furnished with appropriate evidence thereof;
(div) the receipt of Company shall have conducted its business in the initial Borrowing Base Certificate, prepared as of ordinary course from the date hereof to the Closing Date;
(ev) receipt prior to the Closing Date, (a) trading in securities generally on the New York Stock Exchange shall not have been materially suspended or materially limited or minimum or maximum prices shall not have been generally established on such exchange (which shall not include trading suspensions or limitations resulting from the operation of copiesGeneral Rules 80A and 80B of such Exchange, certified as trueamended or supplemented), complete or additional material governmental restrictions, not in force on the date of this Agreement, shall not have been imposed upon trading in securities generally by such exchange or by order of the Securities and Exchange Commission or any court or other governmental authority, (b) a general banking moratorium shall not have been declared by either federal or New York State authorities and (c) a material adverse change in the financial or securities markets in the United States which materially adversely affects the market for the Shares or any declaration by the United States of a national emergency or war shall not have occurred;
(vi) Purchaser shall have received an opinion of counsel to Seller covering the matters described in Sections 3.1, 3.2, 3.3 and 3.4;
(vii) no material adverse change shall have occurred from the date hereof to the Closing Date with respect to the assets, business, properties, operations or financial condition of the Company and its subsidiaries taken as a whole;
(viii) he waiting period under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR Act"), shall have expired or been terminated; and
(ix) the Company shall not have adopted a "poison pill," created a staggered board of directors or issued stock having "super voting rights," or agreed to do any of the foregoing.
2.2 The obligation of Seller to sell the Shares and to perform any other of its obligations hereunder shall be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(i) the representations and warranties of Purchaser contained herein shall be true and correct by the Borrowing Representative, in all material respects at and as of the final cardioCORE Acquisition Agreement, complete with all schedules Closing Date as if made at and exhibits theretoas of such date, and Seller shall have received a certificate of an officer of Purchaser and a certificate of an officer of the Company to such effect;
(ii) Purchaser and the Company shall each have performed and complied with their respective agreements set forth herein that are required to be performed or complied with by them on or prior to the Closing Date, and Seller shall have received a certificate of an officer of Purchaser and a certificate of an officer of the Company to such effect;
(iii) all material related documents executed and delivered consents, approvals or other actions by, or notices to, or filings with, any governmental authority or any other person or entity, necessary or required in connection with the execution execution, delivery or performance by Purchaser and delivery the Company of this Agreement and the cardioCORE Acquisition Agreement, all as executed transactions contemplated hereby shall have been obtained and delivered by all parties theretobe in full force and effect, and the terms and conditions of all of the foregoing Seller shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; andhave been furnished with appropriate evidence thereof;
(fiv) receipt by Agent Seller shall have received an opinion of evidence reasonably satisfactory counsel to Agent that Purchaser covering the cardioCORE Acquisition has matters described in Sections 4.1, 4.2 and 4.3;
(v) the waiting period under the HSR Act shall have expired or been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Dateterminated.
Appears in 1 contract
Conditions to Closing. The obligation several obligations of each Lender the Underwriters to enter into purchase and become bound pay for the Capital Securities will be subject to the following conditions: If filing of the Final Prospectus is required pursuant to Rule 424(b) of the Securities Act Regulations, the Final Prospectus shall have been timely filed with the Commission in accordance with Rule 424(b) of the Securities Act Regulations; and at the Closing Date [and any Option Closing Date], no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission. The Underwriters shall have received, on the Closing Date [and on the Option Closing Date], a certificate signed by the Chairman of the Board, the President, a Vice Chairman of the Board or any Executive or Senior Vice President and the principal financial or accounting officer of the Corporation, dated the Closing Date [or the Option Closing Date, as the case may be], to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus and this Agreement and that: the other Financing Documents andrepresentations and warranties of the Corporation in this Agreement are true and correct in all material respects on and as of the Closing Date [or the Option Closing Date, as the case may be] with the same effect as if applicable make any initial Loans requested by Borrowers to be made on the Closing Date [or the Option Closing Date, shall as the case may be] and the Corporation has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be subject performed or satisfied at or prior to the receipt by Agent Closing Date [or the Option Closing Date, as the case may be]; no stop order suspending the effectiveness of each agreementthe Registration Statement has been issued and no proceedings for that purpose have been instituted or, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction Corporation's knowledge, threatened; and since the date of the following conditions precedent, each to most recent financial statements included in the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
Final Prospectus (a) evidence of the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding exclusive of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011supplement thereto), there has been no developmentmaterial adverse change in the business, event, act, financial condition or occurrence results of operations of the Corporation and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any nature that has occurred that has had or couldsupplement thereto). Subsequent to the date hereof or, either individually or if earlier, the dates as of which information is given in the aggregateRegistration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment thereof), reasonably be expected to there shall not have been any change, or any development involving a Material Adverse Effect;
(d) prospective change, in or affecting the receipt business or properties of the initial Borrowing Base CertificateCorporation and its subsidiaries the effect of which is, prepared in the judgment of the Underwriters, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Capital Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment thereof). The Underwriters shall have received an opinion, dated the Closing Date [and any Option Closing Date], of special counsel to the Corporation, substantially in the form attached hereto as Exhibit A. In rendering such opinion, counsel may state that they are passing only on matters of [New York, Pennsylvania and United States Federal law]. In rendering such opinion, counsel may rely upon an opinion or opinions, each dated the Closing Date[ or the Option Closing Date, as the case may be], of other counsel retained by them or the Corporation as to laws of any jurisdiction other than the United States, the Commonwealth of Pennsylvania, or the State of New York, provided that (i) such reliance is expressly authorized by each opinion so relied upon and a copy of each such opinion is delivered to the Underwriters, and (ii) counsel shall state in their opinion that they and the Underwriters are justified in relying thereon. Insofar as such opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Corporation, its subsidiaries and the Trust and certificates of public officials. The Underwriters shall have received an opinion, dated the Closing Date [and any Option Closing Date], of counsel to the Trust Company and Trust Delaware, substantially in the form attached hereto as Exhibit B. The Underwriters shall have received an opinion, dated the Closing Date [and any Option Closing Date], of counsel to the Underwriters as to such matters as the Underwriters shall reasonably request. In rendering such opinion, counsel may rely upon an opinion or opinions, each dated the Closing Date, of other counsel retained by them or the Corporation as to laws of any jurisdiction other than the United States, the State of New York or the Commonwealth of Pennsylvania, provided that (i) such reliance is expressly authorized by each opinion so relied upon and a copy of each such opinion is delivered to the Underwriters, and (ii) counsel shall state in their opinion that they believe that they and the Underwriters are justified in relying thereon. Insofar as such opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Corporation, its subsidiaries and the Trust and certificates of public officials. The Underwriters shall have received an opinion, dated the Closing Date [and any Option Closing Date], of special Delaware counsel to the Corporation and the Trust, substantially to the effect and in the form attached hereto as Exhibit C. At the date hereof, at the Closing Date and at any Option Date, the Underwriters shall have received letters, dated respectively as of the date hereof, as of the Closing Date and as of any Option Closing Date;
(e) receipt , in form and substance reasonably satisfactory to them, from the Corporation's independent public accountants, containing statements and information of copiesthe type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information, certified including the financial information contained or incorporated by reference in the Registration Statement as true, complete and correct identified by the Borrowing Representative. Such letters shall also confirm that, with respect to the Corporation, they are independent accountants within the meaning of the final cardioCORE Acquisition Agreementpublished rules and regulations of the American Institute of Certified Public Accountants. Prior to the Closing Date [and any Option Closing Date], complete with all schedules the Corporation shall have furnished to the Underwriters such further information, certificates and exhibits thereto, and all material related documents executed and delivered as the Underwriters may reasonably request in connection with the execution and delivery offering of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing DateCapital Securities.
Appears in 1 contract
Conditions to Closing. The obligation At or before Closing, and contemporaneously with the acceptance of each Lender to enter into and become bound under this Agreement delivery of the Notes, and the other Financing Documents andpayment of the purchase price thereof, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be subject District will provide to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionUnderwriter:
(a) evidence a certificate of the consummation District, signed by an official of the transactions (other than District, dated the funding date of the LoanClosing, to the effect that (i) contemplated as of the date of the Closing, all of the representations of the District contained in this Purchase Contract are true, and that the District Resolution is in full force and effect and has not been amended, modified or rescinded, (ii) as of the date of the Closing, there is no litigation pending or to the best of the knowledge of the District, threatened concerning the validity of the Notes, the corporate existence of the District, or the entitlement of the respective officers of the District who shall sign any documents and certificates to be executed in connection with the delivery of the Notes, to their respective offices, (iii) the Preliminary Official Statement as of its date, and the Official Statement as of its date and as of the date of Closing, do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading, excluding in any information contained in the Official Statement relating to DTC or its book-entry only system, information relating to the reoffering of the Notes provided by the Operative Documents includingUnderwriter, without limitationand information contained therein describing the County’s investment policy and current portfolio holdings, and (iv) since the funding date of any and all investments contemplated by this Purchase Contract, there has been no material adverse change in the Operative Documentsfinancial condition or affairs of the District;
(b) a certificate of the payment County, signed by the appropriate officials of the County, dated the date of the Closing, to the effect that (i) all feesof the representations of the County contained in this Purchase Contract are true, expenses and other amounts due that the County Resolution is in full force and payable effect and has not been amended, modified or rescinded, and (ii) the Preliminary Official Statement as of its date, and the Official Statement as of its date and as of the date of Closing, solely with respect to the information contained therein describing the County’s investment policy and current portfolio holdings (as they relate to funds of the District held by the Director of Finance), do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in the light of the circumstances under each Financing Documentwhich they were made, not misleading;
(c) Since December 31a tax certificate of the District, 2011dated the date of the Closing, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected form satisfactory to have a Material Adverse EffectBond Counsel;
(d) the receipt Opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, Bond Counsel (“Bond Counsel”), addressed to the District and dated the date of the initial Borrowing Base CertificateClosing, prepared as approving the validity of the Closing DateNotes substantially in the form set forth as Appendix [ ] to the Official Statement;
(e) receipt a reliance letter from Bond Counsel to the effect that the Underwriter may rely upon the approving opinion described in (d) above;
(f) the Opinion addressed to the Underwriter, of copies▇▇▇▇▇ ▇▇▇▇ LLP, certified counsel to the Underwriter and dated the date of the Closing, in such form as truemay be acceptable to the Underwriter;
(g) evidence satisfactory to the Underwriter that any ratings described in the Official Statement are in full force and effect as of the date of the Closing;
(h) a certificate of an appropriate official of the District evidencing his determination respecting the Preliminary Official Statement in accordance with Rule 15c2- 12;
(i) a certificate, complete and correct by together with a fully executed copy of the Borrowing RepresentativeDistrict Resolution, of the final cardioCORE Acquisition Agreement, complete with all schedules Clerk of the Board of Trustees of the District to the effect that: (i) such copy is a true and exhibits theretocorrect copy of the District Resolution, and all material related documents executed (ii) that the District Resolution was duly adopted and delivered has not been modified, amended, rescinded or revoked and is in connection with full force and effect on the execution and delivery date of the cardioCORE Acquisition AgreementClosing;
(j) a certificate, all as together with a fully executed copy of the County Resolution, of the Clerk of the Board of Supervisors of the County to the effect that: (i) such copy is a true and delivered by all parties theretocorrect copy of the County Resolution, and (ii) that the terms County Resolution was duly adopted and conditions of all has not been modified, amended, rescinded or revoked and is in full force and effect on the date of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretionClosing;
(k) the receipt of the Director of Finance confirming payment by the Underwriter of the purchase price of the Notes; and
(fl) receipt the Continuing Disclosure Certificate of the District with respect to the Notes, in substantially the form attached to the Preliminary Official Statement, containing such covenants of the District as shall be necessary to facilitate compliance by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance Underwriter with the cardioCORE Acquisition Agreement requirements of Rule 15c2-12. At or before Closing, and other material related documents executed and delivered in connection contemporaneously with the execution and acceptance of delivery of the cardioCORE Acquisition Agreement. Each LenderNotes and the payment of the purchase price thereof, the Underwriter will provide to the District the receipt of the Underwriter, in form satisfactory to the District and the County and signed by delivering its signature page an authorized officer of the Underwriter, confirming delivery of the Notes to the Underwriter and the satisfaction of all conditions and terms of this AgreementPurchase Contract by the District and the County, shall be deemed to have acknowledged receipt ofrespectively, and consented confirming to the District and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, the County that as applicable, on of the date of the Closing Dateall of the representations of the Underwriter contained in this Purchase Contract are true and correct in all material respects.
Appears in 1 contract
Sources: Note Purchase Contract
Conditions to Closing. 7.01 Conditions to GMC's, GMI's and Merger Subsidiary's Obligations. -------------------------------------------------------------- The obligation of each Lender GMC, GMI and Merger Subsidiary to enter into and become bound under consummate the transactions contemplated by this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be is subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to at or before the satisfaction of Agent and Lenders and their respective counsel in their sole discretionEffective Time:
(a) evidence The representations and warranties set forth in Article III hereof shall be true and correct in all material respects at and as of the Effective Time as though then made and as though the Effective Time had been substituted for the date of this Agreement throughout such representations and warranties (without taking into account any disclosures by the Company of discoveries, events or occurrences arising on or after the date hereof), except that any such representation or warranty made as of a specified date (other than the date hereof) shall only need to have been true on and as of such date;
(b) The Company shall have performed in all material respects all of the covenants and agreements required to be performed by them prior to the Effective Time under this Agreement;
(c) The Company shall have obtained, or caused to be obtained, each consent and approval necessary in order that the transactions contemplated herein not constitute a material breach or violation of, or result in a right of termination or acceleration of, or creation of any encumbrance on any of the Company's assets pursuant to the provisions of, any agreement, arrangement or undertaking of or affecting the Company or any license, franchise or permit of or affecting the Company;
(d) The Letter Agreement, this Agreement, the Certificate of Merger and the Merger shall have been duly and validly authorized by the board of directors of the Company and this Agreement shall have been duly and validly approved by the stockholders of the Company, the Company shall have delivered to GMI evidence, in form satisfactory to GMI's counsel, of such authorization and approval, and the Certificate of Merger shall have been duly executed by the Company;
(e) All material governmental filings, authorizations and approvals that are required for the consummation of the transactions (other than the funding of the Loan) contemplated by this Agreement or the Operative Documents including, without limitation, the funding Certificate of any Merger shall have been duly made and all investments contemplated by the Operative Documentsobtained;
(bf) There shall not be threatened, instituted or pending any action or proceeding, before any court or governmental authority or agency, domestic or foreign,
(i) challenging or seeking to make illegal, or to delay or otherwise directly or indirectly restrain or prohibit, the payment consummation of the transactions contemplated hereby or seeking to obtain material damages in connection with such transactions, (ii) seeking to prohibit direct or indirect ownership or operation by GMI or Merger Subsidiary of all feesor a material portion of the business or assets of the Company or to GMI or Merger Subsidiary or any of their subsidiaries or the Company to dispose of or to hold separately all or a material portion of the business or assets of GMI or Merger Subsidiary and their subsidiaries or of the Company, expenses as a result of the transactions contemplated hereby, (iii) seeking to require direct or indirect transfer or sale by GMI or Merger Subsidiary of any of the shares of Company Common Stock, (iv) seeking to invalidate or render unenforceable any material provision of this Agreement, the Certificate of Merger or any of the other agreements attached as exhibits hereto (collectively, the "Related Agreements"), or (v) otherwise relating to and other amounts due and payable under each Financing Documentmaterially adversely affecting the transactions contemplated hereby;
(cg) Since December 31There shall not be any action taken, 2011or any statute, there rule, regulation, judgment, order or injunction enacted, entered, enforced, promulgated, issued or deemed applicable to the transactions contemplated hereby by any federal, state or foreign court, government or governmental authority or agency, which would reasonably be expected to result, directly or indirectly, in any of the consequences referred to in Section 7.01(f) hereof;
(h) GMI shall have completed its due diligence investigation of the Company, including the Company's financial statements, tax returns, contracts, employee benefit plans, real property and equipment, and such investigation shall be satisfactory to GMI in its sole discretion, and the officers of the Company shall have made themselves available for additional due diligence as reasonably requested by GMI at any time before the Closing Date; provided, however, that GMI's satisfaction with its due diligence in its sole discretion, as a closing condition, shall terminate at the end of the tenth calendar day following the mailing of the Information Statement to be prepared pursuant to Section 5.07 hereof;
(i) The Company's Disclosure Schedules shall not contain or disclose any fact or circumstance existing as of the date of this Agreement which has not been disclosed to GMI as of the date of this Agreement (with the understanding that write-downs of evaluation units, demonstration units, consigned units and parts and other equipment has been no developmentdisclosed to GMI as of the date of this Agreement) regarding the business, eventassets, actproperties, condition (financial or occurrence otherwise) or results of any nature that has occurred that has had or couldoperations of the Company which, either individually or in the aggregate with other such facts and circumstances, are reasonably likely to cause the Company or its business to realize a loss, cost, expense or diminution in value, or otherwise result in an adverse effect on the business, assets, properties, condition (financial or otherwise) or results of operations of the Company, taken as a whole, of $250,000 or more (a "Material Adverse Effect");
(j) There shall have been no damage, destruction or loss of or to any property or properties owned or used by the Company, whether or not covered by insurance, which, in the aggregate, has, or would be reasonably be expected likely to have have, a Material Adverse EffectEffect on the Company;
(dk) the receipt No more than 12% of the initial Borrowing Base Certificate, prepared outstanding shares of Company Common Stock shall be qualified to be Dissenting Shares as of the Closing DateEffective Time;
(el) receipt GMI shall have received from counsel for the Company a written opinion, dated the date of copiesthe Effective Time, certified addressed to GMC, GMI and Merger Subsidiary and reasonably satisfactory to counsel for GMI;
(m) Prior to the Effective Time, the Company shall have delivered to GMI all of the following:
(i) a certificate of the Secretary of the Company, dated as trueof the date of the Effective Time, complete stating that the conditions precedent set forth in subsections (a) and correct (b) above have been satisfied;
(ii) a copy of each of (X) the text of the resolutions adopted by the Borrowing Representative, board of directors of the final cardioCORE Acquisition Company authorizing the execution, delivery and performance of the Letter Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, this Agreement and the terms Certificate of Merger and conditions the consummation of all of the foregoing transactions contemplated by this Agreement and the Certificate of Merger and (Y) the Bylaws of the Company, along with a certificate executed on behalf of the Company by its corporate secretary certifying to GMI that such copies are true and correct copies of such resolutions and Bylaws, respectively, and that such resolutions and bylaws were duly adopted and have not been amended or rescinded;
(iii) the Company's minute books, stock transfer records, corporate seal and other materials related to the Company's corporate administration;
(iv) a copy of the Certificate of Incorporation of the Company, certified by the Secretary of State of the State of Delaware, and Certificates of Good Standing from the Secretary of State of the State of Delaware evidencing the good standing of the Company in such jurisdiction;
(v) copies of the third party and governmental consents and approvals and of the authorizations referred to in subsections (c), (d) and (e) above;
(vi) incumbency certificates executed on behalf of the Company by its corporate secretary certifying the signature and office of each officer executing this Agreement and the Certificate of Merger and the Related Agreements executed by the Company;
(vii) an executed copy of each of the Related Agreements;
(viii) such other certificates, documents and instruments as GMI reasonably requests related to the transactions contemplated hereby;
(n) ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇ ▇▇▇▇▇▇ III and the ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Foundation (the "Stockholder Lenders") shall have canceled $280,000 of short-term Company debt, plus accrued but unpaid interest, in exchange for the issuance by the Company to the Stockholder Lenders of a number of shares of the Company's Common Stock equal to the amount of such debt and accrued but unpaid interest divided by $1.00;
(o) No more than 35 of the stockholders of the Company shall not be "accredited investors" within the meaning of Rule 501 under the 1933 Act, and the Company shall have delivered to GMI evidence, in form satisfactory to Agent and Lenders and their respective counsel in their sole discretionGMI's counsel, of compliance with this condition; and
(fp) receipt by Agent H&QGF, GMC and GMI shall have negotiated and executed loan agreements providing for one or more loans in the aggregate amount of evidence reasonably satisfactory up to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required $3,000,000 to be approved made by AgentH&QGF to GMC, Required Lenders GMI or Lenders, as applicable, on the Closing DateSurviving Corporation.
(q) The Company shall have executed the Collateral Agreement.
Appears in 1 contract
Conditions to Closing. The Lenders’ obligation of each Lender to enter into and become bound under this Agreement and fund the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be is subject to the receipt by Agent occurrence of each agreement, document the Effective Date and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction (or waiver in accordance with Section 13.13) of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a1) evidence of except as disclosed in the consummation of Company SEC Documents (as defined in the transactions Blue Acquisition Agreement as in effect on February 3, 2015) filed with, or furnished to, the Securities and Exchange Commission after April 28, 2013 and prior to February 3, 2015 (excluding any disclosures set forth in any such Company SEC Document in any risk factor section, any forward-looking disclosure in any section relating to forward-looking statements or any other statements that are non-specific, predictive or primarily cautionary in nature other than historical facts included therein) or in the funding of Company Disclosure Letter (as defined in the LoanBlue Acquisition Agreement as in effect on February 3, 2015), since April 27, 2014 and prior to February 3, 2015, there shall not have been any change, event, fact, effect or occurrence that has had, or would reasonably be expected to have a Blue Material Adverse Effect and (2) contemplated by the Operative Documents includingsince February 3, without limitation2015, the funding of there shall not have been any and all investments contemplated by the Operative Documentschange, event, fact, effect or occurrence that has had or would reasonably be expected to have a Blue Material Adverse Effect;
(b) the payment Blue Acquisition shall be consummated substantially concurrently with the Borrowing on the Closing Date, in accordance with the Blue Acquisition Agreement, and the Blue Acquisition Agreement (as in effect on February 3, 2015) has not been amended or modified by the Borrower, and no condition shall have been waived or consent granted by the Borrower, in any respect that is materially adverse to the Lenders or to Bank of America without Bank of America’s prior written consent (it being understood and agreed that (i) any decrease in the cash portion of the Blue Acquisition Consideration that is accompanied by a dollar-for-dollar reduction in commitments under the Bridge Facility and (ii) any increase in the cash portion of the Blue Acquisition Consideration, together with any other increases since February 3, 2015, which does not exceed 5% of the purchase price, in each case shall be deemed not to be materially adverse to the Lenders or to Bank of America); and
(c) each of the Blue Acquisition Agreement Representations and the Specified Blue Acquisition Representations shall be true and correct in all feesmaterial respects as of the Closing Date, expenses except to the extent the same expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, provided that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects (after giving effect to any qualification therein);
(d) the Administrative Agent shall have received a certificate from an Authorized Representative of the Borrower, certifying as to clauses (a), (b) and (c) of this Section 7.2;
(e) the Administrative Agent shall have received, at the Borrower’s option, either: (1) for each of the Borrower and Big Heart Pet Brands (the “Operating Subsidiary”)
(a) U.S. GAAP audited consolidated balance sheets and related statements of comprehensive income (loss), stockholders’ equity and cash flows for the three most recently completed fiscal years ended at least 60 days prior to the Closing Date and (b) U.S. GAAP unaudited consolidated balance sheets and related unaudited statements of comprehensive income (loss) and cash flows for each subsequent interim fiscal quarter ended at least 40 days before the Closing Date, which financial statements shall meet the requirements in all material respects of Regulation S-X under the Securities Act of 1933 (the “Securities Act”) for a registered public offering of debt Securities of the Borrower on Form S-1 (except such provisions for which compliance is not customary for private placements of debt securities pursuant to Rule 144A under the Securities Act) or (2) for each of the Borrower and the Blue Acquired Business (a) U.S. GAAP audited consolidated balance sheets and related statements of comprehensive income (loss), stockholders’ equity and cash flows for the three most recently completed fiscal years ended at least 60 days prior to the Closing Date and (b) U.S. GAAP unaudited consolidated balance sheets and related unaudited statements of comprehensive income (loss) and cash flows for the interim period from the date of the most recent such audited consolidated balance sheet through the date of the most recent quarterly period that has ended at least 40 days prior to the Closing Date, which financial statements shall meet the requirements in all material respects of Regulation S-X under the Securities Act for a registered public offering of debt Securities of the Borrower on Form S-1. The Administrative Agent hereby acknowledges receipt of the financial statements in the foregoing clause (1)(a) with respect to the Borrower and the Operating Subsidiary for the fiscal years ended 2012, 2013 and 2014, and in the foregoing clause (1)(b) with respect to the Borrower and the Operating Subsidiary for the fiscal quarters ended on or about July 31, 2014 and October 31, 2014; provided that the Borrower’s and Operating Subsidiary’s or the Blue Acquired Business’, as the case may be, filing of any required audited financial statements with respect to the Borrower or Operating Subsidiary or the Blue Acquired Business, as the case may be, on Form 10-K or required unaudited financial statements with respect to the Borrower or Operating Subsidiary or the Blue Acquired Business, as the case may be, on Form 10-Q, in each case, will satisfy the requirements under clauses (1)(a) or (2)(a) or (1)(b) or (2)(b), as applicable, of this paragraph;
(f) the Administrative Agent shall have received the Notice of Borrowing required by Section 1.6 hereof;
(g) the Administrative Agent shall have received a solvency certificate from the chief financial officer of the Borrower in the form attached as Exhibit H hereto;
(h) the Administrative Agent, the Lead Arrangers and the Lenders shall have received all fees as set forth in the Fee Letter, and other amounts due and payable under to them pursuant to the terms hereof, in each Financing Document;
(c) Since December 31case, 2011, there has been no development, event, act, condition on or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected prior to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date;
, including, to the extent invoiced at least three Business Days prior to the Closing Date (e) receipt or such later date as the Borrower may reasonable agree), reimbursement or payment of copies, certified as true, complete and correct all out-of-pocket expenses required to be reimbursed or paid by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretionBorrower hereunder or under any other Loan Document; and
(fi) receipt by Agent All principal amounts of evidence reasonably satisfactory to Agent that debt outstanding under the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery following indentures or loan agreements of the cardioCORE Acquisition Blue Acquired Business and its Subsidiaries will be repaid, redeemed or satisfied and discharged and the commitments thereunder terminated substantially simultaneously with or immediately after the funding of the Loans: (i) Indenture, dated as of February 16, 2011, between Operating Subsidiary and The Bank of New York Mellon Trust Company, N.A., governing Operating Subsidiary’s 7.625% Senior Notes due 2019, (ii) Credit Agreement. Each Lender, dated as of March 8, 2011, by delivering and among Operating Subsidiary, certain of its signature page affiliates, the lenders party thereto from time to this time and JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, and (iii) Credit Agreement, shall be deemed dated as of March 6, 2014, by and among Operating Subsidiary, certain of its affiliates, the lenders party thereto from time to have acknowledged receipt oftime and JPMorgan Chase Bank, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or LendersN.A., as applicable, on the Closing Dateadministrative agent and collateral agent.
Appears in 1 contract
Conditions to Closing. (a) The obligation Underwriters have entered into this Purchase Agreement in reliance upon the representations and warranties of each Lender to enter into the District contained herein and become bound the performance by the District of its obligations hereunder, both as of the date hereof and as of the date of Closing. The Underwriters’ obligations under this Purchase Agreement are and shall be subject at the option of the Underwriters, to the following further conditions at the Closing:
(1) The representations and warranties of the District contained herein shall be true, complete and correct in all material respects at the date hereof and at and as of the Closing, as if made at and as of the Closing, and the statements made in all certificates and other Financing documents delivered to the Underwriters at the Closing pursuant hereto shall be true, complete and correct in all material respects on the date of the Closing; and the District shall be in compliance with each of the agreements made by it in this Purchase Agreement;
(2) At the time of the Closing, (i) the Official Statement and the District Documents andshall be in full force and effect and shall not have been amended, if applicable make any initial Loans requested modified or supplemented except as may have been agreed to in writing by Borrowers the parties hereto; (ii) all actions under the Act which, in the opinion of Bond Counsel, shall be necessary in connection with the transactions contemplated hereby, shall have been duly taken and shall be in full force and effect; and (iii) the District shall perform or have performed all of its obligations required under or specified in the District Documents or the Official Statement to be performed at or prior to the Closing;
(3) No decision, ruling or finding shall have been entered by any court or governmental authority since the date of this Purchase Agreement (and not reversed on appeal or otherwise set aside), or to the best knowledge of the District, shall be pending (in which service of process has been completed against the District) or threatened (either in state or federal courts)
(A) seeking to restrain or enjoin the execution, sale or delivery of any of the Bonds, (B) in any way contesting or affecting the authority for the execution, sale or delivery of the Bonds, this Purchase Agreement, the Escrow Agreement or the Continuing Disclosure Certificate, or (C) in any way contesting the existence or powers of the District, or contesting in any way the completeness or accuracy of the Official Statement;
(4) Between the date hereof and the Closing, the market price for the Bonds, or the market for or marketability or the ability of the Underwriters to enforce contracts for the sale of the Bonds at the initial offering prices set forth in the Official Statement, shall not have been materially adversely affected by reason of any of the following:
(i) legislation enacted by the Congress of the United States, or by the legislature of the State, or introduced in the Congress or recommended for passage by the President of the United States, or a decision rendered by a court of the United States or the State or by the United States Tax Court, or an order, ruling, regulation (final, temporary or proposed) or official statement issued or made:
(A) by or on behalf of the United States Treasury Department, or by or on behalf of the Internal Revenue Service or other federal or State authority, which would have the purpose or effect of changing, directly or indirectly, the federal income tax consequences of interest on obligations of the general character of the Bonds in the hands of the holders thereof or State tax consequences of interest on obligations of the general character of the Bonds in the hands of the holders thereof; or
(B) by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction over the subject matter thereof, to the effect that the Bonds, or obligations of the general character of the Bonds, including any and all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended, or that the Resolution is not exempt from qualification under the Trust Indenture Act of 1939, as amended;
(ii) the declaration of war or engagement in or escalation of major military hostilities by the United States or the occurrence of any other national or international emergency or calamity or crisis relating to the effective operation of the government or the financial community in the United States;
(iii) the declaration of a general banking moratorium by federal, New York or State authorities having jurisdiction, or the general suspension of trading on any national securities exchange or fixing of minimum or maximum prices for trading or maximum ranges for prices for securities on any national securities exchange, whether by virtue or a determination by that exchange or by order of the Securities and Exchange Commission or any other governmental authority having jurisdiction or a material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred;
(iv) the imposition by the New York Stock Exchange, other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds, or obligations of the general character of the Bonds, or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, the Underwriters;
(v) an order, decree or injunction of any court of competent jurisdiction, or order, filing, regulation or official statement by the Securities and Exchange Commission, or any other governmental agency having jurisdiction over the subject matter thereof, issued or made on to the effect that the issuance, offering or sale of obligations of the general character of the Bonds, or the issuance, offering or sale of the Bonds, as contemplated hereby or by the Official Statement, is or would be in violation of the federal securities laws, as amended and then in effect;
(vi) the withdrawal or downgrading of any underlying rating or credit watch status or outlook of the District’s outstanding indebtedness by a national rating agency;
(vii) the occurrence of any adverse change of a material nature of the financial condition, results of operation or properties of the District;
(viii) any event occurring, or information becoming known which, in the reasonable judgment of the Underwriters, makes untrue in any material adverse respect any statement or information set forth in the Official Statement, or has the effect that the Official Statement contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading; or
(ix) a material disruption in securities settlement, payment or clearance services or the marketability of the Bonds or the market price thereof, in the opinion of the Underwriters, has been materially and adversely affected by disruptive events, occurrences or conditions in the securities or debt markets.
(5) At or prior to the Closing Date, the Underwriters shall be subject to have received the receipt by Agent following documents, in each case dated as of each agreement, document the Closing Date and instrument set forth on the closing checklist prepared by Agent or its counsel, each satisfactory in form and substance satisfactory to Agentthe Representative:
(i) A certificate of the Clerk of the Board of Education to the effect that
(i) the copy of the Resolution attached thereto is a true and correct copy thereof, and such (ii) the Resolution was duly adopted and has not been modified, amended, rescinded or revoked and is in full force and effect on the Closing; Date;
(ii) Executed copies of the Escrow Agreement, the Continuing Disclosure Certificate and the Official Statement;
(iii) An approving opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP as Bond Counsel, substantially in the form attached as Appendix C to the Official Statement, relating to the Bonds, dated the Closing Date and addressed to the District;
(iv) A reliance letter from Bond Counsel to the effect that the Underwriters may rely upon the approving opinion described in Section 8(a)(5)(iii) above;
(v) A supplemental opinion of Bond Counsel, dated the Closing Date and addressed to the Underwriters, to the effect that (i) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Resolution is exempt from qualification pursuant to the Trust Indenture Act of 1939, as amended, (ii) assuming due authorization, execution and delivery by all the parties thereto other closing deliverables reasonably requested than the District, this Purchase Agreement and the Continuing Disclosure Certificate constitute valid and binding obligations of the District, except as enforcement thereof may be limited by Agent bankruptcy, insolvency, reorganization, receivership, arrangement, fraudulent conveyance, moratorium and Lendersother laws relating to or affecting creditors’ rights, to the application of equitable principles, to the exercise of judicial discretion in appropriate cases and to the satisfaction limitations on legal remedies against school districts or counties in the State of California (provided that no opinion need be rendered regarding the adequacy of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a) evidence Continuing Disclosure Certificate for purposes of the consummation of Rule), and (iii) statements contained in the transactions Official Statement under the captions “THE REFUNDING BONDS” (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of excluding any and all investments contemplated information contained under the subheadings “– Authority for Issuance; Plan of Refunding,” “ – Plan of Refunding,” “– Estimated Sources and Uses of Funds,” “– Debt Service,” “– Outstanding Bonds” and “– Aggregate Debt Service”) and “TAX MATTERS,” excluding any material that may be treated as included under such captions by cross reference or reference to other documents or sources, insofar as such statements expressly summarize certain provisions of the Operative DocumentsBonds and the Resolution, and the form and content of Bond Counsel’s approving opinion, are accurate in all material respects;
(bvi) A certificate, dated the Closing Date, signed by an appropriate official of the District, to the effect that (i) such official is authorized to execute the Escrow Agreement, the Continuing Disclosure Certificate and this Purchase Agreement, (ii) the payment representations, agreements and warranties of the District herein are true and correct in all feesmaterial respects as of the date of Closing, expenses (iii) the District has complied with all the terms of the District Documents to be complied with by the District prior to or concurrently with the Closing and such documents are in full force and effect; (iv) to the best of such official’s knowledge, no litigation is pending or threatened (either in state or federal courts) (A) seeking to restrain or enjoin the execution, sale or delivery of any of the Bonds, (B) in any way contesting or affecting the authority for the execution, sale or delivery of the Bonds, the Escrow Agreement, the Continuing Disclosure Certificate or this Purchase Agreement, or (C) in any way contesting the existence or powers of the District, (v) such official has reviewed the Official Statement and on such basis certifies that the Official Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, (vi) each of the conditions listed in Section 8(a)(5) of this Purchase Agreement has been satisfied as of the Closing Date and the District is not aware of any other amounts due condition of this Purchase Agreement that has not been satisfied as of the Closing Date, and payable (vii) the Bonds being delivered on the Closing Date to the Underwriters under each Financing Documentthis Purchase Agreement substantially conform to the descriptions thereof contained in the Resolution and this Purchase Agreement;
(cvii) Since December 31The letter of ▇▇▇▇▇▇, 2011▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, there has been no developmentas disclosure counsel to the District (“Disclosure Counsel”), eventaddressed to the District and the Underwriters, actdated the Closing Date, condition or occurrence to the effect that, based on such counsel’s participation in conferences with representatives of any nature that has occurred that has had or couldthe County, either individually or the District, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Associates, Inc., as the District’s Municipal Advisor, the Underwriters, [ ], as counsel to the Underwriters, [the Insurer] and others, during which the contents of the Official Statement and related matters were discussed, and based on such counsel’s participation in the aggregateabove-mentioned conferences (which did not extend beyond the date of the Official Statement), reasonably be expected and in reliance thereon, on oral and written statements and representations of the District, the County and others and on the records, documents, certificates, opinions and matters herein mentioned, such counsel advises the District and the Underwriters, as a matter of fact and not opinion, that, during the course of such counsel’s engagement as disclosure counsel with respect to have the Bonds, no facts came to the attention of such counsel’s attorneys rendering legal services in connection with such representation with respect to the Bonds which caused such counsel to believe that the Official Statement as of its date and as of the Closing Date (except for any CUSIP numbers, financial, accounting, statistical, economic or demographic data or forecasts, numbers, charts, tables, graphs, estimates, projections, assumptions or expressions of opinion, or management discussions and analysis, any information about verification, DTC or its book-entry system, Cede & Co., litigation, ratings, rating agencies, Municipal Advisors, the Underwriters, underwriting[, the Insurer, the Policy] or relationships among the parties, any statements about compliance with prior continuing disclosure undertakings, and Appendices [ ], [ ], [ ], [ ] and [ ], included or referred to therein or omitted therefrom, as to which such counsel expressly excludes from the scope of this paragraph and as to which such counsel expresses no opinion or view) contained or contains any untrue statement of a Material Adverse Effectmaterial fact or omitted or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(dviii) Evidence satisfactory to the receipt of Underwriters that any ratings described in the initial Borrowing Base Certificate, prepared Official Statement are in full force and effect as of the Closing Date;
(eix) receipt A certificate of copiesthe Escrow Bank dated the Closing Date, certified as truesigned by a duly authorized officer of the Escrow Bank, complete and in form and substance satisfactory to the Underwriters, to the effect that (i) to the best of such officer’s knowledge, the representations and agreements of the Escrow Bank in the Escrow Agreement are true and correct by the Borrowing Representative, as of the final cardioCORE Acquisition AgreementClosing Date, complete with all schedules and exhibits thereto(ii) the Escrow Agreement has been duly authorized, and all material related documents executed and delivered and, assuming due execution by the other parties thereto, is enforceable against the Escrow Bank in accordance with its terms; and (iii) no litigation is pending or, to such officer’s knowledge, threatened (either in state or federal courts) in any way contesting or affecting any authority of the Escrow Bank for or in connection with the execution and delivery its performance of the cardioCORE Acquisition Escrow Agreement;
(x) A defeasance opinion of Bond Counsel, all dated the Closing Date and addressed to the District and the Underwriters, to the effect that, upon the deposit of cash and certain proceeds of the Bonds into the escrow funds established under the Escrow Agreement as executed and delivered by all parties theretoprovided in the paying agent agreement pursuant to which the Prior Bonds were issued, and the terms investment of money and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated securities in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery provisions of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Escrow Agreement, shall be deemed to the Prior Bonds will have acknowledged receipt ofbeen satisfied and discharged and are no longer outstanding under said paying agent agreement. In rendering this opinion, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, Bond Counsel may rely on the Closing Date.Verification Report as to the mathematical accuracy of the schedules with respect to the sufficiency of the escrow funds established to pay the Prior Bonds and will not independently verify the accuracy of the information contained in the Verification Report;
(xi) A report by ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ P.C., verifying the arithmetical accuracy of the computation of projected receipts for and of payments to retire the Prior Bonds (the “Verification Report”);
(xii) [The Policy with respec
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to Closing. The obligation Unless waived by the Managers, the several obligations of each Lender the Underwriters hereunder are subject to enter into the accuracy of the representations and become bound under this warranties on the part of the Company contained herein as of the date of the Underwriting Agreement and the other Financing Documents and, Closing Date (as if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall ) and the performance by the Company of all the obligations to be subject performed by it under this Agreement on or prior to the receipt by Agent of each agreement, document Closing Date and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionconditions:
(a) evidence Subsequent to the Applicable Time and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the consummation possible change, in the rating accorded the Company or any of the transactions (other than the funding securities of the LoanCompany by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) contemplated by of the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;Exchange Act.
(b) No stop order suspending the payment effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission, and there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business, properties or operations of the Company and its consolidated subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus, that, in the judgment of the Managers, is material and adverse and that makes it, in the judgment of the Managers, impracticable or inadvisable to market or deliver the Offered Securities on the terms and in the manner contemplated in the Time of Sale Prospectus; and the Managers shall have received, on the Closing Date, a certificate, dated the Closing Date and signed by either the chief executive officer or chief financial officer of the Company, to the foregoing effect. Such certificate will also provide that the representations and warranties of the Company contained herein are true and correct as of the Closing Date and that the Company has complied with all fees, expenses agreements and other amounts due and payable under each Financing Document;satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date. The officer making such certificate may rely upon the best of his knowledge as to proceedings threatened.
(c) Since December 31The Managers shall have received on the Closing Date an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇, 2011Senior Vice President, there General Counsel and Corporate Secretary of the Company (or another lawyer of the Company reasonably satisfactory to the Underwriters), dated the Closing Date, addressed to the Managers to the effect (as applicable) that:
(i) each of the Company and Kansas Gas and Electric Company (the “Principal Subsidiary”) has been no developmentduly incorporated, eventis validly existing as a corporation in good standing under the laws of the State of Kansas and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification (except where the failure to so qualify would not have a material adverse effect upon the business or financial condition of the Company and its subsidiaries, actas a whole);
(ii) all of the issued shares of capital stock of the Principal Subsidiary have been duly and validly authorized and issued, condition are fully paid and non-assessable, and (except for directors’ qualifying shares and except as otherwise set forth in the Time of Sale Prospectus and the Prospectus) are owned directly and indirectly by the Company, free and clear of all liens, encumbrances, equities or occurrence claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that he believes that both the Managers and he are justified in relying upon such opinions and certificates);
(iii) the Company has an authorized capitalization as set forth in the Time of Sale Prospectus and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iv) each of the indenture dated as of August 1, 1998 (the “Senior Indenture”) between the Company and Deutsche Bank Trust Company Americas, as successor to Bankers Trust Company, as trustee (the “Senior Debt Trustee”), the indenture to be dated as of a date indicated in a relevant prospectus supplement (the “Subordinated Indenture”) between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Subordinated Debt Trustee”), the Mortgage and Deed of Trust, dated July 1, 1939, between the Company and The Bank of New York Mellon Trust Company, N.A., as successor to ▇▇▇▇▇▇ Trust and Savings Bank, as trustee (the “Mortgage Bond Trustee”), as amended and supplemented by forty-four supplemental indentures supplemental thereto, in addition to the forty-second supplemental (reopening) indenture (such Mortgage and Deed of Trust, as heretofore amended and supplemented, the “Mortgage”) and as to be amended and supplemented by the supplemental indenture, to be dated as of a date indicated in a relevant prospectus supplement (the “Supplemental Indenture”) (the Mortgage, as so amended and supplemented by such supplemental indentures, the “Amended Mortgage”), has been duly authorized, executed and delivered by the Company;
(v) assuming the due authorization, execution and delivery by the other parties thereto, the Amended Mortgage constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability;
(vi) the Amended Mortgage has been duly recorded and filed in each place in which such recording or filing is required to protect and preserve the lien of the Amended Mortgage, and all taxes and recording or filing fees required to be paid in connection with the execution, recording or filing of the Amended Mortgage have been duly paid;
(vii) the Company has good and sufficient title to, or a satisfactory easement in, all the real property, and has good and sufficient title to all the personal property described in the Amended Mortgage as owned by it and subject to the lien of the Amended Mortgage, except any which may have been released from the lien thereof pursuant to the provisions thereof, subject only to (a) minor leases and liens of judgments not prior to the lien of the Amended Mortgage, which, in such counsel’s opinion, do not interfere with the Company’s business, (b) minor defects, irregularities and deficiencies in titles of properties and rights-of-way which, in such counsel’s opinion, do not materially impair the use of such property and rights of- way for the purposes for which they are held by the Company, and (c) other permitted liens as defined in the Amended Mortgage; subject to the qualifications set forth in this Section 4(c)(vii), the Amended Mortgage constitutes a valid, direct first mortgage lien upon said properties and upon all franchises owned by the Company, which properties and franchises include all the physical properties and franchises of the Company (other than classes of property expressly excepted in the Amended Mortgage); all physical properties and franchises (other than classes of property expressly excepted in the Amended Mortgage as aforesaid) thereafter acquired by the Company will, upon such acquisition, become subject to the lien thereof, subject, however, to liens permitted thereby and to any liens existing or placed upon such properties at the time of the acquisition thereof by the Company and except as described in the Time of Sale Prospectus and the Prospectus; and the descriptions of all such properties and assets contained in the granting clauses of the Amended Mortgage are correct and adequate for the purposes of the Amended Mortgage;
(viii) the Warrant Agreement, if any, has been duly authorized, executed and delivered by the Company;
(ix) the Unit Agreement, if any, has been duly authorized, executed and delivered by the Company;
(x) the Offered Securities have been duly authorized, executed, and delivered by the Company;
(xi) when the Offered Securities have been duly executed and authenticated in accordance with the provisions of the relevant Senior Indenture, Subordinated Indenture or Amended Mortgage, the Offered Securities will be valid and binding obligations of the Company, enforceable against them in accordance with their terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and will be entitled to the benefits of the relevant Senior Indenture, Subordinated Indenture or Amended Mortgage and to the lien of the Amended Mortgage;
(xii) this Agreement has been duly authorized, executed and delivered by the Company;
(xiii) except as rights to indemnity and contribution under this Agreement may be limited under applicable law, the execution and delivery by the Company of, and the performance by the Company of its obligations under this Agreement, the Senior Indenture, the Subordinated Indenture, the Amended Mortgage, the Offered Securities, the Warrant Agreement and the Unit Agreement will not contravene any provision of the laws of the State of Kansas or any federal law of the United States of America (including laws relating specifically to electric utility companies and the electric utility industry) that in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the topic contemplated by this Agreement, or, to the best knowledge of such counsel, of any nature other state or jurisdiction of the United States, or the articles of incorporation or by-laws (or similar organizational document) of the Company or, to the best knowledge of such counsel, any material agreement or other material instrument binding upon the Company, the Senior Indenture, the Subordinated Indenture, the Amended Mortgage, the Offered Securities, the Warrant Agreement and the Unit Agreement, provided that has occurred such counsel need not express an opinion as to federal or state securities or Blue Sky laws, and no consent, approval or authorization of any governmental body or agency under the laws of the State of Kansas or any federal law of the United States of America (except with respect to consents, approvals and authorizations relating specifically to public utility companies or the utilities industry, as to which such counsel is not called upon to express any opinion) that has had in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the topic contemplated by this Agreement, or, to the best knowledge of such counsel, of any other state or couldjurisdiction of the United States of America or of any foreign jurisdiction is required for the performance by the Company of its obligations under this Agreement, either the Senior Indenture, the Subordinated Indenture, the Amended Mortgage, the Offered Securities, the Warrant Agreement, and the Unit Agreement provided that such counsel need not express an opinion as to federal or state securities or Blue Sky laws;
(xiv) each of the Company and the Principal Subsidiary possesses valid franchises, certificates of convenience and authority, licenses and permits authorizing it to carry on the electric utility business in which it is engaged, except in the cases that the failure to possess such franchises, certificates, licenses or permits, individually or in the aggregate, would not be reasonably expected to have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole, and neither the Company nor the Principal Subsidiary has received any notice of proceedings relating to the revocation or modification of any such franchise, certificate of convenience and authority, license or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effectmaterial adverse effect, except as set forth in or contemplated in the Time of Sale Prospectus and the Prospectus;
(dxv) the receipt statements (A) in Item 3 of the initial Borrowing Base CertificateCompany’s most recent Annual Report on Form 10-K incorporated by reference in the Time of Sale Prospectus and the Prospectus, prepared as (B) in Part II, Item 1 under the caption “Legal Proceedings” of the Closing DateCompany’s most recent Quarterly Report on Form 10-Q incorporated by reference in the Time of Sale Prospectus and (C) in the Registration Statement in Item 15, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings;
(exvi) receipt such counsel does not know of copiesany legal or governmental proceeding pending or threatened (including, certified as truewithout limitation, complete and correct by proceeding pending before the Borrowing Representative, State Corporation Commission of the final cardioCORE Acquisition AgreementState of Kansas (“KCC”) or Federal Energy Regulatory Commission (“FERC”)) to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject which is required to be described in the Registration Statement, complete the Time of Sale Prospectus or the Prospectus and is not so described, or of any contract, other document, public utility law or regulation which is required to be described in the Registration Statement, the Time of Sale Prospectus or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required;
(xvii) the securities into which the Offered Securities are convertible, initially reserved for issuance upon conversion of the Offered Company Securities (the “Underlying Securities”), have been duly authorized and reserved for issuance;
(xviii) when the Underlying Securities are issued upon conversion of the Offered Company Securities in accordance with all schedules the terms of the Offered Company Securities, such Underlying Securities will be validly issued, fully paid and exhibits theretonon-assessable and will not be subject to any preemptive or other right to subscribe for or purchase such Underlying Securities;
(xix) the Company has complied with K.S.A. 9 66- 125 with respect to the issuance of the Offered Securities. No additional consent, and all material related documents executed and delivered approval, authorization, filing with or order of (a) FERC under the Federal Power Act, (b) the KCC or (c) to the knowledge of the Company, any court or governmental agency or body is required in connection with the execution transactions contemplated herein, except such as have been obtained under the Securities Act and delivery the Trust Indenture Act of 1939 (the “Trust Indenture Act”) and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the cardioCORE Acquisition Agreement, all as executed Securities by the Underwriters in the manner contemplated herein and delivered by all parties thereto, and in the terms and conditions Time of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretionSale Prospectus; and
(fxx) receipt by Agent The statements in the prospectus supplement contained in the Time of evidence reasonably satisfactory Sale Prospectus and the Prospectus under “Description of First Mortgage Bonds,” “Description of Senior Notes” or “Description of Subordinated Indebtedness” and in the Base Prospectus under the caption “Description of Debt Securities” as they relate to Agent the Amended Mortgage, the Senior Debt Indenture, the Subordinated Debt Indenture and the Offered Securities, insofar as such statements constitute a summary of the legal matters or documents referred to therein, fairly present the information called for with respect to such legal matters and documents. Such counsel shall also state that nothing has come to his attention that causes him to believe (1) that the cardioCORE Acquisition has been closed and consummated in accordance with Registration Statement or any amendments thereto, on the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with date on which it became effective or the execution and delivery date of filing of the cardioCORE Acquisition Agreement. Each Lendermost recent subsequent Annual Report on Form 10-K, by delivering its signature page contained an untrue statement of a material fact or omitted to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument state a material fact required to be approved by Agent, Required Lenders stated therein or Lenders, as applicable, on the Closing Date.neces
Appears in 1 contract
Conditions to Closing. 8.1 The obligation of Dataware to consummate the transactions contemplated by this Agreement is subject to the satisfaction (or waiver by Dataware) as of the Closing of the following conditions:
(i) All corporate or other action necessary to authorize the execution, delivery and performance of each Lender to enter into of the Transaction Documents by IHSG and become bound under the consummation of the transactions contemplated by each of the Transaction Documents shall have been duly and validly taken by IHSG.
(ii) The representations and warranties of IHSG set forth in this Agreement shall be true and correct in all material respects as of the date of this Agreement and as of the other Financing Closing Date as though made on and as of the Closing Date.
(iii) Dataware shall have received (i) a certificate dated as of the Closing Date, signed by the Secretary or Assistant Secretary of IHSG and certifying as to (A) the Certificate of Incorporation and By-Laws of IHSG and CMC and the incumbency of officers executing each of the Transaction Documents andto which IHSG is a party, if applicable make any initial Loans and (B) resolutions of the Board of Directors of IHSG authorizing the execution, delivery and performance by IHSG of each of the Transaction Documents to which IHSG is a party, (ii) a certificate, dated as of the Closing Date, signed by an authorized officer of IHSG and certifying as to the fulfillment of the conditions set forth in this Section and the compliance of IHSG with the covenants to be performed by it before the Closing, and (iii) the legal opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇, counsel to IHSG, as to such matters as Dataware reasonably may request.
(iv) Dataware shall have received copies of resignations from each of the officers and directors of CMC whose resignations shall have been requested by Borrowers the Dataware prior to the Closing.
(v) There shall not have been a material adverse change in the assets, business, condition (financial or otherwise) or results of operations of CMC since the date hereof.
(vi) IHSG or its designee shall have made the offers of employment referred to in Section 13.
(vii) IHSG shall have executed and delivered the Distribution Agreement to Dataware.
(viii) All CMC Options shall have been terminated in accordance with their terms and be made without further force and effect (provided that such termination may be subject to the issuance of the Dataware Options).
(ix) No action, suit or proceeding shall have been instituted before or threatened by any court or governmental or regulatory body to restrain, modify or prevent the consummation of the transactions contemplated hereby, or that has or may have, in the reasonable opinion of Dataware, (a) the effect of restraining, modifying or preventing the consummation of such transactions or (b) a materially adverse effect on the assets, properties, business, operations or condition (financial or otherwise) of CMC.
(x) IHSG and each of its affiliates, as applicable, shall (1) have capitalized all intercompany payables owed to it by CMC, (2) have terminated all tax sharing agreements between CMC and its affiliates such that no party shall have any further rights thereunder, and (3) by a release in the form of Exhibit B hereto, have released and --------- discharged CMC from any and all claims, demands and liabilities whatsoever arising or accruing before the Closing under each and every agreement, arrangement, law, regulation or state of facts except for such matters as are explicitly covered in this Agreement.
(xi) IHSG shall have executed and delivered to Dataware a Sublease in the form of Exhibit C hereto (the "Sublease"). ---------
(xii) Dataware shall have received a schedule of the Closing Date CMC Receivables, which schedule shall include an aging of such receivables, and a balance sheet of CMC as of September 30, 1997 (the "Closing Date CMC Balance Sheet"). The Closing Date CMC Balance Sheet will reflect, and CMC will have, as of the Closing, shareholders' equity of at least $2.93 million, of which at least $1.75 million will be cash. CMC will have, on the Closing Date, no material liabilities of a nature required to be reflected on a balance sheet prepared in accordance with US generally accepted accounting principles ("GAAP"), that are not reflected or reserved in the Closing Date CMC Balance Sheet, nor any other material liabilities.
(xiii) Dataware shall have received such other instruments or documents as may be reasonably required by Dataware as necessary or appropriate to carry out the transactions contemplated hereby.
(xiv) The form and substance of all legal matters contemplated herein and all papers delivered hereunder shall be acceptable in the reasonable judgment of Dataware and its counsel.
8.2 The obligation of IHSG to consummate the transactions contemplated by this Agreement is subject to the receipt satisfaction (or waiver by Agent IHSG) as of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction Closing of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionconditions:
(ai) evidence All corporate or other action necessary to authorize the execution, delivery and performance of each of the Transaction Documents by Dataware, Dataware UK and the Dataware Subsidiaries and the consummation of the transactions (other than the funding contemplated by each of the Loan) contemplated Transaction Documents shall have been duly and validly taken by Dataware, Dataware UK and the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;Dataware Subsidiaries.
(bii) the payment The representations and warranties of Dataware set forth in this Agreement shall be correct in all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt material respects as of the initial Borrowing Base Certificate, prepared date of this Agreement and as of the Closing Date as though made on and as of the Closing Date;.
(eiii) receipt IHSG shall have received (i) a certificate dated as of copiesthe Closing Date, certified as true, complete and correct signed by the Borrowing RepresentativeSecretary or Assistant Secretary of Dataware or Dataware UK and certifying as to (a) the Certificate of Incorporation, By-laws and other governing documents of Dataware, Dataware UK and the Dataware Subsidiaries, and incumbency of officers executing each of the Transaction Documents to which Dataware, Dataware UK and the Dataware Subsidiaries is party, and (B) the resolutions of the Board of Directors of Dataware and Dataware UK authorizing the execution, delivery and performance by Dataware and Dataware UK, respectively, of each of the final cardioCORE Acquisition Agreementdocuments to which it is a party, complete (ii) a certificate, dated as of the Closing Date, signed by the President or Vice President of Dataware and certifying as to the fulfillment of the conditions set forth in this Section and the compliance of Dataware with all schedules and exhibits theretothe covenants to be performed by it before the Closing, and all (iii) the legal opinion of ▇▇▇▇▇▇ & Dodge LLP, counsel to Dataware, as to such matters as IHSG reasonably may request.
(iv) IHSG shall have received copies of resignations from each of the officers and directors of the Dataware Subsidiaries whose resignations shall have been requested by IHSG prior to the Closing.
(v) There shall not have been a material related documents adverse change in the assets, business, condition (financial or otherwise) or results of operations of the Dataware Services Business since the date hereof.
(vi) Dataware shall have executed and delivered in connection with the execution and delivery Distribution Agreement to IHSG.
(vii) No action, suit or proceeding shall have been instituted before or threatened by any court or governmental or regulatory body to restrain, modify or prevent the consummation of the cardioCORE Acquisition Agreementtransactions contemplated hereby, all as executed and delivered by all parties theretoor that has or may have, and in the terms and conditions reasonable opinion of all IHSG, (a) the effect of restraining, modifying or preventing the consummation of such transactions or (b) a materially adverse effect on the assets, properties, business, operations or condition (financial or otherwise) of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; andDataware Services Business.
(fviii) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document Dataware and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lendersof its affiliates, as applicable, on shall (1) have capitalized all intercompany payables owed to it by any of the Dataware Subsidiaries and (2), by a release in the form of Exhibit B hereto, have released and discharged the Dataware --------- Subsidiaries from any and all claims, demands and liabilities whatsoever arising or accruing before the Closing Dateunder each and every agreement, arrangement, law, regulation or state of facts except for such matters as are explicitly covered in this Agreement.
(ix) IHSG shall have received such other instruments or documents as may be reasonably required by IHSG as necessary or appropriate to carry out the transactions contemplated hereby.
(x) The form and substance of all legal matters contemplated herein and all papers delivered hereunder shall be acceptable in the reasonable judgment of IHSG and its counsel.
Appears in 1 contract
Conditions to Closing. The obligation several obligations of each Lender the Underwriters to enter into purchase and become bound under this Agreement and pay for the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall Capital Securities will be subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionconditions:
(a) evidence The Prospectus shall have been timely filed with the Commission in accordance with Rule 430A of the consummation Securities Act Regulations; and, at the Closing Date, the Registration Statement shall have been declared effective and no stop order suspending the effectiveness of the transactions (other than Registration Statement or any part thereof shall have been issued under the funding Securities Act or proceedings therefor initiated or threatened by the Commission; and any request of the Loan) contemplated by Commission for inclusion of additional information in the Operative Documents including, without limitation, Registration Statement or the funding Prospectus shall have been complied with to the reasonable satisfaction of any and all investments contemplated by counsel to the Operative Documents;Underwriters.
(b) The Underwriters shall have received, on the payment of all fees, expenses and other amounts due and payable under each Financing Document;Closing Date,
(cA) Since December 31a certificate signed by the Chairman of the Board, 2011the President, there has been no developmenta Vice Chairman of the Board or any Executive or Senior Vice President and the principal financial or accounting officer of the Company, eventdated the Closing Date, act, condition or occurrence to the effect that the signers of any nature that has occurred that has had or could, either individually or in such certificate have carefully examined the aggregate, reasonably be expected to have a Material Adverse Effect;Registration Statement and this Agreement and that:
(di) the receipt representations and warranties of the initial Borrowing Base Certificate, prepared Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) since the date of the most recent financial statements included in the Registration Statement (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement (exclusive of any supplement thereto); and
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to each such officer's knowledge, are contemplated by the Commission; and
(B) a certificate signed by each of the Administrators of the Trust to the effect of clauses (i) and (ii) above with respect to the Trust.
(c) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), there shall not have been any change, or any development involving a prospective change, in or affecting the business or properties of the Trust, the Company and its subsidiaries the effect of which is, in the judgment of the Underwriters, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Capital Securities as contemplated by the Registration Statement (exclusive of any amendment thereof).
(d) The Underwriters shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇ & Wood LLP, special tax counsel for the Offerors, substantially in the form attached hereto as Exhibit A. Insofar as such opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Company, its subsidiaries and the Trust and certificates of public officials.
(e) receipt The Underwriters shall have received opinions, dated the Closing Date, of copies▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇, certified Esq., General Counsel to the Company, and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Company, substantially in the form attached hereto as trueExhibit B-1 and B-2, complete respectively. Insofar as such opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Company, its subsidiaries and correct the Trust, and certificates of public officials.
(f) The Underwriters shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to the Trust Company and Trust Delaware, substantially in the form attached hereto as Exhibit C.
(g) The Underwriters shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇ & Wood LLP, counsel to the Underwriters as to such matters as the Underwriters shall reasonably request. In rendering such opinion, counsel may rely upon an opinion or opinions, each dated the Closing Date, of other counsel retained by them or the Company as to laws of any jurisdiction other than the United States or the State of New York, provided that (A) such reliance is expressly authorized by each opinion so relied upon and a copy of each such opinion is delivered to the Underwriters, and (B) counsel shall state in their opinion that they believe that they and the Underwriters are justified in relying thereon. Insofar as such opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Company, its subsidiaries and the Trust and certificates of public officials.
(h) The Underwriters shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel to the Offerors, substantially to the effect and in the form attached hereto as Exhibit D.
(i) On the Closing Date, the Capital Securities shall be rated at least _____ by ▇▇▇▇▇'▇ Investor Service, Inc. ("Moody's") and ____ by Standard & Poor's Rating Services, a division of McGraw Hill, Inc. ("S&P"), and the Trust shall have delivered to the Underwriters a letter dated the Closing Date, from each such rating agency, or other evidence satisfactory to the Underwriters, confirming that the Capital Securities have such ratings; and on or prior to the Closing Date, no downgrading in the rating accorded the Capital Securities or any other debt securities of the Company by any "nationally recognized statistical rating organization" (as that term is defined by the Borrowing RepresentativeCommission for the purposes of Rule 436(g)(2) under the Securities Act) shall have occurred, or any public announcement shall have been made that any such organization has under surveillance or review their ratings of the Capital Securities or any other debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating), and if, in any such case, the final cardioCORE Acquisition effect thereof in the reasonable judgment of the Underwriters makes it impracticable or inadvisable to proceed with the purchase of the Capital Securities.
(j) At the time of the execution of this Agreement, complete the Underwriters shall have received a letter, dated such date, in form and substance reasonably satisfactory to them, from Ernst & Young LLP, independent public accountants of the Company, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with all schedules respect to the financial statements and exhibits theretocertain financial information, including the financial information contained or incorporated by reference in the Registration Statement as identified by the Representative.
(k) At the Closing Date, the Representatives shall have received from Ernst & Young LLP a letter, dated as of the Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (j) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date.
(l) Prior to the Closing Date, the Company shall have furnished to the Underwriters such further information, certificates and all material related documents executed and delivered as the Underwriters may reasonably request in connection with the execution and delivery offering of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing DateCapital Securities.
Appears in 1 contract
Sources: Underwriting Agreement (Equitable Resources Capital Trust I)
Conditions to Closing. The obligation obligations of the Exclusive Managing Agent hereunder shall be subject, in the discretion of the Exclusive Managing Agent, to the condition that all representations and warranties and other statements of the Company herein are, at and as of the SEC Effective Date and each Lender to enter into and become bound under this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, true and correct in all material respects, and the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be subject performed, and the following additional conditions:
(a) The Registration Statement shall have become and shall remain effective under the Act.
(b) If required, the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the Regulations.
(c) All appropriate post-effective amendments to the receipt Prospectus shall have been filed with the Commission and the Commission, on or before the relevant Subsequent Closing Date, either shall have raised no objections or comments thereto, or it shall have declared each of such post-effective amendments to be effective.
(d) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission, and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Exclusive Managing Agent.
(i) The Company (including its Subsidiaries) shall not have sustained since the date of the latest audited financial statement included in the Prospectus, any loss or interference with its business, fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, and (ii) since the respective dates as of which information is given in the Prospectus there shall not have been any change in the capital stock or long-term debt of the Company as a whole or any change, or any development involving a prospective change, in or affecting the general affairs, prospects, management, financial position, shareholders’ equity or results of operations of the Company (including its Subsidiaries) otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the reasonable judgment of the Exclusive Managing Agent so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being issued at such Closing Date on the terms and in the manner contemplated by the Prospectus.
(f) On or after the date hereof there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or the American Stock Exchange; (ii) a general moratorium on commercial banking activities in any state declared by either Federal or state authorities; (iii) any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis if the effect of any such event specified in this clause in the reasonable judgment of the Exclusive Managing Agent makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being issued at such Closing Date on the terms and in the manner contemplated in the Prospectus; or (iv) such a material adverse change in general economic, political, financial or international conditions affecting financial markets in the United States having a material adverse impact on trading prices of securities in general, as, in the reasonable judgment of the Exclusive Managing Agent makes it inadvisable to proceed with the sale of the Shares through the Exclusive Managing Agent.
(g) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the applicable Closing Date, prevent the issuance or sale of the Shares, and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the applicable Closing Date, prevent the issuance or sale of the Shares.
(h) The Exclusive Managing Agent shall have received a certificate of the Chief Executive Officer and Chief Financial Officer of the Company, dated as of each agreement, document and instrument Closing Date to the effect that (as of the applicable Closing Date): (i) the conditions set forth in this Section 7 have been satisfied, (ii) the representations and warranties of the Company set forth in Section 1 hereof are accurate, (iii) all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the closing checklist prepared Company and the Subsidiaries have not sustained any material loss or interference with their respective businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereof has been issued and no proceedings therefore have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included or incorporated by reference in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included or incorporated by reference and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus there has not been any material adverse change or any development involving a prospective material adverse change, whether or not arising from transactions in the ordinary course of business, in or affecting (x) the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company and the Subsidiaries, taken as a whole; (y) the long term debt (if any) and capital stock of the Company or any of its Subsidiaries; or (z) the Offering or consummation of any of the other transactions contemplated by this Agreement, the Registration Statement and the Prospectus.
(i) The Exclusive Managing Agent or its counselshall have received the favorable written opinion of Arent Fox LLP, each legal counsel for the Company, dated as of the applicable Closing Date addressed to the Exclusive Managing Agent in the form attached hereto as Exhibit A.
(j) As of the applicable Closing Date, the Exclusive Managing Agent shall have received a “cold comfort” letter from G▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP independent public accountants for the Company, dated, respectively, as of the date of delivery and addressed to the Exclusive Managing Agent and in form and substance satisfactory to Agentthe Exclusive Managing Agent and its counsel, confirming that they are independent certified public accountants with respect to the Company and its Subsidiaries within the meaning of the Act and the Regulations, and stating, as of the date of delivery (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to the date of such letter), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter and, with respect to letters issued as of subsequent Closing Dates, confirming the conclusions and findings set forth in such prior letter.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms and arrangements between the Company and the Exclusive Managing Agent.
(l) The Company shall have furnished the Exclusive Managing Agent and its counsel with such other closing deliverables certificates, opinions or other documents as it may have reasonably requested requested.
(m) If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to the Exclusive Managing Agent or to its counsel pursuant to this Section 7 shall not be reasonably satisfactory in form and substance to the Exclusive Managing Agent and Lendersits counsel, and to the satisfaction all obligations of the following conditions precedentExclusive Managing Agent hereunder may be cancelled by the Exclusive Managing Agent at, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a) evidence of or at any time prior to, the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date;
(e) receipt of copies, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties theretoapplicable Closing, and the terms and conditions of all obligations of the foregoing Exclusive Managing Agent to act hereunder may be cancelled by the Exclusive Managing Agent. Notice of such cancellation shall be satisfactory given to Agent and Lenders and their respective counsel the Company in their sole discretion; and
(f) receipt writing, or by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreementtelephone. Each Lender, by delivering its signature page to this Agreement, Any telephonic notice shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Dateconfirmed promptly thereafter in writing.
Appears in 1 contract
Sources: Agency Agreement (Orange REIT, Inc.)
Conditions to Closing. The obligation of each Lender Buyer to enter into and become bound under consummate the transactions contemplated by this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be is subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to on or before the satisfaction of Agent and Lenders and their respective counsel in their sole discretionClosing Date:
(a) evidence The representations and warranties set forth in Article 3 and the information set forth in the schedules to this Agreement (as such schedules may have been revised and updated between the Effective Date and the Closing Date and accepted by Buyer, if applicable, pursuant to Section 5.2) shall be materially true and correct as of the consummation of Closing Date as though made on the transactions (other than the funding of the Loan) contemplated by the Operative Documents includingClosing Date, without limitation, the funding of any and all investments contemplated by the Operative DocumentsSellers shall have delivered to Buyer a certificate to that effect;
(b) Sellers shall have performed or complied with all of the payment of all feescovenants and agreements required under this Agreement, expenses and other amounts due and payable under each Financing DocumentSellers shall have delivered to Buyer a certificate to that effect;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence No order of any nature that has occurred that has had court or couldadministrative agency shall be in effect which restrains or prohibits the transactions contemplated hereby, either individually and there shall not have been threatened, nor shall there be pending, any action or in proceeding by or before any court or governmental agency or other regulatory or administrative agency or commission challenging any of the aggregate, reasonably be expected to have a Material Adverse Effecttransactions contemplated by this Agreement or seeking monetary relief by reason of the consummation of such transactions;
(d) Sellers shall have executed and delivered to Buyer original or facsimile counterparts of each Transaction Document to which it is a party (in accordance with the receipt provision in Section 8.1 permitting the use of facsimile copies);
(e) The governmental approvals and consents by third parties set forth on Schedule 6.1(e) shall have been obtained and no such approval or consent shall have been conditioned upon the modification in any material respect, cancellation or termination of any Material Contract, Lease or Permit or shall impose on Buyer, the Company or the FBOs any material condition, provision, fee or requirement not presently imposed upon the Company or the FBOs or any condition, provision or requirement that would be materially more restrictive after the Closing than the conditions, provisions and requirements presently imposed on the Company or the FBOs, as the case may be; provided, however, that if the Federal Communications Commission consents set forth on such Schedule 6.1(e) have not been obtained within 60 days after the Effective Date, such consents shall no longer be considered to be a condition to closing under this Agreement;
(f) Buyer shall have received reasonable confirmation from Sellers of the initial Borrowing Base Certificateabsence of any and all deeds of trust, prepared assignments of rents, security agreements, Uniform Commercial Code filings (including, but not limited to, the termination of Financing Statement No. 9928660657 set forth on Schedule 3.8(d), but excluding any such filings relating to any other Encumbrances of Personal Property set forth on Schedule 3.8(d)) and fixture filings affecting the Company or either of the FBOs or their respective Facilities or Businesses;
(g) Sellers shall have delivered an opinion of counsel, dated as of the Closing Date and addressed to Buyer, substantially in the form set forth as EXHIBIT "C", with respect to (i) the due authorization, execution, delivery and enforceability of this Agreement as to Merced and (ii) no conflicts between Sellers' obligations under this Agreement and Merced's Charter Documents;
(h) Buyer shall have received the resignation of Affeldt as an officer of the Company and each of the FBOs;
(i) Each of the Sellers shall have delivered to Buyer a tax certificate complying with Treas. Reg. Section 1.1445-2(b)(2) stating that such Seller is not a "foreign person" within the meaning of Section 1445 of the Code;
(j) Buyer shall have received (i) good standing certificates and foreign qualification certificates, if any, for Merced, the Company and each FBO, (ii) copies of the Charter Documents of each Company and each FBO, and (iii) resolutions or instruments of Merced authorizing the execution, delivery and performance by Merced of this Agreement and the transactions contemplated by this Agreement, and an incumbency certificate evidencing the authority and specimen signature of each authorized person of Merced executing this Agreement and any other certificate provided pursuant to this
Section 6.1 each in form and substance reasonably satisfactory to Buyer and certified by an authorized person of Sellers or Merced alone, as appropriate, as of the Closing Date;
. Such certification shall state that such Charter Documents and resolutions (eor other authorizing actions or instruments) receipt of copieshave not been amended, certified modified, revoked or rescinded and are in full force and effect on and as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition AgreementClosing Date and that all company proceedings required to be taken on the part of the Sellers, complete with all schedules the Company and exhibits theretothe FBOs, and all material related documents executed and delivered if any, in connection with the execution transactions contemplated by this Agreement have been duly authorized and delivery taken;
(k) Company shall have sold, transferred, distributed or otherwise disposed of LQA or 100% of the cardioCORE Acquisition Agreementmembership interests of LQA and Buyer shall have received documentation, all as executed in form and delivered by all parties theretosubstance reasonably satisfactory to Buyer, and providing for the sale, transfer, distribution or other disposition of LQA or 100% of the membership interests of LQA prior to the Closing, on terms and conditions that do not impose on Buyer, the Company or the FBOs any condition, provision, limitation, obligation, liability (whether matured or unmatured) or requirement and such documentation shall include an unconditional release by the assignee, transferee or distributee of any and all claims, losses, damages, causes of actions or charges against the Company and the FBOs with respect to the LQA business or arising from, related to, or in connection with such sale, transfer, distribution or other disposition of LQA or the membership interests of LQA, as applicable.
(l) PSP's Franchise Agreement with Million Air Interlink, Inc. dated as of November 1, 1999, shall have been terminated at Sellers' sole cost and expense, on terms and conditions that do not impose on Buyer, the Company or the FBOs any continuing conditions, limitations or obligations;
(m) Sellers shall have delivered to Buyer three (3) business days prior to the Closing Date, a written statement setting forth the principal amount and the accrued interest owing under the Merced Note, the Phegley Note and the Foster Note, duly executed by each Seller;
(n) Buyer sh▇▇▇ ▇▇ve agreed with Sellers upon (i) the amount of the foregoing shall Base Net Working Capital against which the Net Working Capital of the FBOs as of the Effective Time will be satisfactory measured to Agent determine any adjustment to the Purchase Price and Lenders (ii) the principles, specifications and their respective counsel in their sole discretionmethodologies for determining Net Working Capital and Base Net Working Capital; and
(fo) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition There has not been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Dateany Material Adverse Change.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Macquarie Infrastructure Assets LLC)
Conditions to Closing. The obligation Unless waived by the Managers, the several obligations of each Lender the Underwriters hereunder are subject to enter into the accuracy of the representations and become bound under this warranties on the part of the Company contained herein as of the date of the Underwriting Agreement and the other Financing Documents and, Closing Date (as if applicable make any initial Loans requested by Borrowers to be made on the Closing Date), shall the performance by the Company of all of the obligations to be subject performed by it under this Agreement on or prior to the receipt by Agent of each agreement, document Closing Date and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionconditions:
(a) evidence Subsequent to the Applicable Time and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the consummation possible change, in the rating accorded the Company or any of the transactions (other than the funding securities of the LoanCompany by any “nationally recognized statistical rating organization,” as such term as defined in Section 3(a)(62) contemplated by of the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;Exchange Act.
(b) No stop order suspending the payment effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission, and there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business, properties or operations of the Company and its consolidated subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus, that, in the judgment of the Managers, is material and adverse and that makes it, in the judgment of the Managers, impracticable or inadvisable to market or deliver the Offered Securities on the terms and in the manner contemplated in the Time of Sale Prospectus; and the Managers shall have received, on the Closing Date, a certificate, dated the Closing Date and signed by either the chief executive officer or chief financial officer of the Company, to the foregoing effect. Such certificate will also provide that the representations and warranties of the Company contained herein are true and correct as of the Closing Date and that the Company has complied with all fees, expenses agreements and other amounts due and payable under each Financing Document;satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date. The officer making such certificate may rely upon the best of his knowledge as to proceedings threatened.
(c) Since December 31The Managers shall have received on the Closing Date an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇, 2011Vice President, there General Counsel and Corporate Secretary of the Company (or another lawyer of the Company reasonably satisfactory to the Underwriters), dated the Closing Date, addressed to the Managers to the effect that:
(i) each of the Company and Kansas Gas and Electric Company (the “Principal Subsidiary”) has been no developmentduly incorporated, eventis validly existing as a corporation in good standing under the laws of the State of Kansas and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification (except where the failure to so qualify would not have a material adverse effect upon the business or financial condition of the Company and its subsidiaries, actas a whole);
(ii) the Company has an authorized capitalization as set forth in the Time of Sale Prospectus and the Prospectus, condition and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) all of the issued shares of capital stock of the Principal Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and (except for directors’ qualifying shares and except as otherwise set forth in the Time of Sale Prospectus and the Prospectus) are owned directly and indirectly by the Company, free and clear of all liens, encumbrances, equities and claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or occurrence its subsidiaries, provided that such counsel shall state that he believes that both the Managers and he are justified in relying upon such opinions and certificates);
(iv) the Offered Securities have been duly authorized by the Company, and when executed and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) except as rights to indemnity and contribution under this Agreement may be limited under applicable law, the execution, delivery and performance of this Agreement by the Company and the issuance and sale of the Offered Securities by the Company will not contravene any provision of applicable law of the United States (including laws relating specifically to electric utility companies and the electric utility industry), Kansas, or, to the best knowledge of such counsel, of any nature other state or jurisdiction of the United States, or the articles of incorporation or by-laws (or similar organizational document) of the Company or, to the best knowledge of such counsel, any material agreement or other material instrument binding upon the Company, and, except for the orders of the Commission making the Registration Statement effective (which have been obtained) and such permits or similar authorizations required under the securities or Blue Sky laws of certain states or foreign jurisdictions (as to which such counsel is not called upon to express any opinion), no consent, approval or authorization of any governmental body or agency of the United States (except with respect to consents, approvals and authorizations relating specifically to the public utility companies or the utilities industry, as to which such counsel is not called upon to express any opinion), Kansas, or, to the best knowledge of such counsel, of any other state or jurisdiction of the United States or of any foreign jurisdiction is required for the performance by the Company of its obligations under this Agreement or the issuance and sale of the Offered Securities by the Company;
(vii) each of the Company and the Principal Subsidiary possesses valid franchises, certificates of convenience and authority, licenses and permits authorizing it to carry on the electric utility business in which it is engaged, except in the cases that has occurred that has had the failure to possess such franchises, certificates, licenses or couldpermits, either individually or in the aggregate, would not be reasonably expected to have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole, and neither the Company nor the Principal Subsidiary has received any notice of proceedings relating to the revocation or modification of any such franchise, certificate of convenience and authority, license or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effectmaterial adverse effect, except as set forth in or contemplated in the Time of Sale Prospectus and the Prospectus;
(dviii) the receipt statements (A) in Item 3 of the initial Borrowing Company’s most recent Annual Report on Form 10-K incorporated by reference in the Time of Sale Prospectus and the Prospectus, (B) in Part II, Item 1 under the caption “Legal Proceedings” of the Company’s most recent Quarterly Report on Form 10-Q incorporated by reference in the Time of Sale Prospectus and (C) in the Registration Statement in Item 15, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings;
(ix) such counsel does not know of any legal or governmental proceeding pending or threatened (including, without limitation, proceeding pending before the State Corporation Commission of the State of Kansas (“KCC”) or Federal Energy Regulatory Commission (“FERC”)) to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject which is required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and is not so described, or of any contract, other document, public utility law or regulation which is required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required;
(x) the Company has complied with K.S.A. § 66-125 with respect to the issuance of the Securities. No additional consent, approval, authorization, filing with or order of (a) FERC under the Federal Power Act, (b) the KCC or (c) to the knowledge of the Company, any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Time of Sale Prospectus; and
(xi) the statements in the prospectus supplement contained in the Time of Sale Prospectus and the Prospectus under “The Offering,” and in the Base CertificateProspectus under “Description of Capital Stock” and “Description of Depositary Shares,” insofar as such statements constitute a summary of the legal matters or documents referred to therein, prepared fairly present the information called for with respect to such legal matters and documents. Such counsel shall also state that nothing has come to his attention that causes him to believe (1) that the Registration Statement or any amendments thereto (except for the financial statements and other financial or statistical data derived therefrom that are included or incorporated by reference therein or omitted therefrom, as to which such counsel is not called upon to express any belief), on the date on which it became effective or the date of filing of the most recent subsequent Annual Report on Form 10-K, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (2) that the Time of Sale Prospectus (except for the financial statements and other financial or statistical data derived therefrom that are included or incorporated by reference therein or omitted therefrom, as to which such counsel is not called upon to express any belief), at the Applicable Time or as amended or supplemented, if applicable, as of the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (3) that the Prospectus (except for the financial statements and other financial or statistical data derived therefrom that are included or incorporated by reference therein or omitted therefrom, as to which such counsel is not called upon to express any belief), at its date or as amended or supplemented, if applicable, at the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make statements therein, in the light of the circumstances under which they were made, not misleading; or (4) that the documents incorporated by reference in the Prospectus (except for the financial statements and other financial or statistical data derived therefrom that are included or incorporated by reference therein or omitted therefrom, as to which such counsel is not called upon to express any belief), as of the dates they were filed with the Commission, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. With respect to the preceding paragraph, such counsel may state that he has not been called upon to pass upon, and that he expresses no view regarding, the financial statements or financial schedules or statistical data derived therefrom or other accounting or financial data included in the Registration Statement, the Time of Sale Prospectus or the Prospectus, and that his opinion and belief is based upon his participation in the preparation of the Registration Statement, Time of Sale Prospectus, Prospectus (as amended or supplemented) and the documents incorporated therein by reference and review and discussion of the contents thereof, but is without independent check or verification except as specified. In expressing his opinion as to questions of the law of jurisdictions other than the State of Kansas and the United States, such counsel may rely to the extent reasonable on such counsel as may be reasonably acceptable to counsel to the Underwriters. In addition, such counsel may reasonably rely as to questions of fact on certificates of responsible officers of the Company.
(d) The Managers shall have received on the Closing Date an opinion of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special counsel for the Company, dated the Closing Date, to the effect that:
(i) the Company is not, and after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Time of Sale Prospectus and the Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(eii) receipt of copiesexcept as rights to indemnity and contribution under this Agreement may be limited under applicable law, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of by the cardioCORE Acquisition Agreement, all as executed and delivered by all parties theretoCompany of, and the terms and conditions performance by the Company of all its obligations under, this Agreement will not contravene any provision of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery laws of the cardioCORE Acquisition Agreement. Each Lenderstate of New York or any federal law of the United States of America (except with respect to laws relating specifically to public utility companies or the utilities industry, as to which such counsel is not called upon to express any opinion) that in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the type contemplated by delivering its signature page to this Agreement, shall be deemed provided that such counsel need not express an opinion as to have acknowledged receipt federal or state securities laws or blue sky laws;
(iii) no consent, approval, authorization, or order of, and consented or qualification with, any governmental body or agency under the laws of the State of New York or any federal law of the United States of America (except with respect to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required laws relating specifically to be approved by Agent, Required Lenders public utility companies or Lendersthe utilities industry, as applicableto which such counsel is not called upon to express any opinion) that in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the type contemplated by this Agreement is required for the execution, on delivery and performance by the Closing Date.Company of its obligations under this Agreement, except such as may be required under federal or state securities or blue sky laws; Such counsel has considered the statements included in the Prospectus Supplement under the caption “Underwriting” insofar as they summarize provisions of this Agreement, and in such counsel’s opinion, such statements fairly summarize these provisions in all material respects; and such counsel has considered the statements in the Time of Sale Prospectus in the Base Prospectus under the caption “Plan of Distribution,” insofar as such statements constitute a summary of the legal matters or documents referred to therein, and in such counsel’s opinion, such statements fairly present the information called for with respect to such legal matters and documents. Such counsel shall also state that it has reviewed the Registration Statement, the Time of Sale Prospectus and the Prospectus and has participated in conferences with officers and other representatives of the Company, with representatives of the Company’s independent registered public accounting firm and with your representatives and your couns
Appears in 1 contract
Conditions to Closing. The obligation Underwriters have entered into this Certificate Purchase Agreement in reliance upon the representations and agreements of each Lender to enter into the Corporation and become bound the School Board herein and the performance by the Corporation and the School Board of their obligations hereunder, both as of the date hereof and as of the date of the Closing. The Underwriters’ obligations under this Certificate Purchase Agreement are and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall will be subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionfurther conditions:
(a) evidence at the time of the consummation Closing (i) each of the transactions Corporation Documents and the School Board Documents will be in full force and effect and will not have been amended, modified or supplemented except as may have been agreed to in writing by the Manager, (other than ii) the funding proceeds of the Loansale of the Series 2010B Certificates will be applied as described in the Offering Statement, and (iii) the School Board and the Corporation will have duly adopted and there shall be in full force and effect such resolutions as, in the opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, P.A. and KnoxSeaton (collectively, “Co-Special Tax Counsel”), shall be necessary to effectuate the transactions contemplated hereby and by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative DocumentsOffering Statement;
(b) the payment Underwriters shall have the right to cancel their obligations to purchase the Series 2010B Certificates, by notice from the Manager to the Corporation and School Board of all feesits election to do so, expenses if between the date hereof and the Closing:
(i) legislation shall have been enacted by the Congress of the United States or adopted by either House thereof or favorably reported for passage to either House of the Congress by any committee of such House to which such legislation shall have been referred for consideration, or enacted by the Florida Legislature or adopted by either House thereof or favorably reported for passage to either House of the Florida Legislature by any committee of such House to which such legislation shall have been referred for consideration, or a decision shall have been rendered by a court of the United States or of the State of Florida or by the Tax Court of the United States, or a ruling or an official statement shall have been made or a regulation shall have been proposed or made by or on behalf of the Treasury Department of the United States or the Internal Revenue Service or other amounts due federal or Florida authority, with respect to federal or Florida taxation upon revenues or other income of the general character to be derived by the Corporation or by any similar body, or upon interest on obligations of the general character of the Ground Leases or the Leases, or the tax treatment thereof for federal income tax purposes, or (in the case of Florida authorities only) with respect to Florida taxation on such Leases or on the Series 2010B Certificates as intangible personal property, or other action or events shall have transpired that, in the reasonable judgment of the Underwriters, would have the purpose or effect, directly or indirectly, of changing the federal income tax consequences or Florida tax consequences of any of the transactions contemplated in connection herewith, and payable that, in the reasonable judgment of the Underwriters, affects materially and adversely the market price or the marketability of the Series 2010B Certificates or the ability of the Underwriters to enforce contracts for the sale of the Series 2010B Certificates; or
(ii) any event shall have occurred, or any condition shall exist that, in the reasonable judgement of the Underwriters, either (A) makes untrue or incorrect in any material respect any statement or information contained in the Offering Statement or (B) is not reflected in the Offering Statement but should be reflected therein in order to make the statements and the information contained therein, in light of the circumstances under each Financing Document;which they were made, not misleading in any material respect; or
(iii) there shall have occurred any outbreak or escalation of hostilities, or declaration of war by the United States, or other local, national or international emergency, calamity or crisis, including financial crisis, the effect of which on the financial markets of the United States, in the sole judgement of the Underwriters, is such as to make the offering or delivery of the Series 2010B Certificates, as contemplated by the Offering Statement, impractical or inadvisable; or
(iv) there shall be in force a general suspension of trading on the New York Stock Exchange or minimum or maximum prices for trading shall have been fixed and be in force, or maximum ranges for prices of securities shall have been required and be in force on the New York Stock Exchange, or by order of the Securities and Exchange Commission or any other governmental authority having jurisdiction, or there shall be in force a suspension of trading in any outstanding securities of the School Board or the Corporation; or
(v) a general banking moratorium shall have been declared by federal, Florida or New York authorities having jurisdiction and be in force; or
(vi) legislation shall be enacted, or a decision by a court of the United States shall be rendered that, in the opinion of counsel for the Underwriters, has the effect of requiring the contemplated distribution of the Series 2010B Certificates or any action or instrument pertaining thereto to be registered under the Securities Act of 1933, as amended, or under Florida law, or of requiring any of the Trust Agreements, or any instrument or act pertaining thereto, to be qualified under the Trust Indenture Act of 1939, as amended; or
(vii) there shall have been any materially adverse change in the affairs of the School Board that, in the reasonable judgement of the Underwriters, materially and adversely affects the market price or marketability of the Series 2010B Certificates or the ability of the Underwriters to enforce contracts for the sale of the Series 2010B Certificates; or
(viii) a supplement or amendment shall have been made to the Offering Statement subsequent to the date hereof that in the reasonable judgment of the Underwriters, materially and adversely affects the market price or the marketability of the Series 2010B Certificates or the ability of the Underwriters to enforce contracts for the sale of the Series 2010B Certificates; and
(c) Since December 31at or prior to the Closing, 2011the Underwriters shall receive the following documents:
(i) the approving opinions of Co-Special Tax Counsel with respect to the Series 2010B Certificates, there has been no developmentdated the date of the Closing, event, act, condition or occurrence of any nature that has occurred that has had or couldsubstantially in the form attached to the Offering Statement as Appendix D, either individually addressed to the Underwriters, the School Board, the Corporation and the Trustee or in accompanied by a letter addressed to such parties, indicating that such parties may rely on the aggregate, reasonably be expected approving opinions of Co-Special Tax Counsel as if such opinions were addressed to have a Material Adverse Effectthem;
(dii) supplementary opinions of Co-Special Tax Counsel, dated the receipt of the initial Borrowing Base Certificate, prepared as date of the Closing Date;
and addressed to the Underwriters, the School Board and the Corporation, to the effect that (eA) receipt the information contained in the Offering Statement under the headings (unless otherwise noted, the term “headings” includes all subheadings under a heading) entitled “INTRODUCTION” (excluding the information under the subheadings “The School Board and the District” and “Miscellaneous”), “REFUNDING PLAN,” “THE SERIES 2010B CERTIFICATES” (excluding the information under the subheading “Book-Entry Only System”), “SECURITY FOR THE SERIES 2010B CERTIFICATES,” “THE MASTER LEASE PROGRAM,” “THE SERIES 1991A-1 LEASE, SERIES 1992A-1 LEASE, SERIES 2001A-1 LEASE AND SERIES 2001B-1 LEASE,” “CONTINUING DISCLOSURE,” “APPENDIX C - Forms of copiesCertain Legal Documents,” “APPENDIX D - Proposed Form of Opinion of Co-Special Tax Counsel” and “APPENDIX E - Form of Continuing Disclosure Certificate” (excluding any financial, certified statistical and demographic information and information regarding DTC, its book-entry only system, the Series 2010B Credit Facility and the Series 2010B Credit Facility Issuer) insofar as truesuch information constitutes summaries of the documents referred to therein or purports to describe the Constitution and laws of the State of Florida or the United States, complete constitutes fair and accurate statements or summaries of the documents and laws purported to be summarized or described; (B) the statements contained under the heading “TAX TREATMENT” are accurate and correct by as to matters of law; and (C) the Borrowing Representative, Leases constitute exempt securities within the meaning of Section 3(a)(2) of the final cardioCORE Acquisition AgreementSecurities Act of 1933, complete with all schedules as amended (the “1933 Act”) and exhibits thereto, and all material related documents executed and delivered it is not necessary in connection with the execution offer and delivery sale of the cardioCORE Acquisition AgreementSeries 2010B Certificates to the public to register the Series 2010B Certificates under the 1933 Act, all or to qualify the Series 2010B Trust Agreement under the Trust Indenture Act of 1939, as amended.
(iii) the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire, counsel for the Corporation (the “Corporation’s Counsel”), dated the date of the Closing and addressed to the Underwriters, the School Board, the Corporation, the Trustee and the Series 2010B Credit Facility Issuer to the effect that (A) the Corporation is duly created and validly existing and in good standing under the laws of the State of Florida; (B) under Florida law, the Corporation is a legal entity separate and apart from the School Board and is not an agency of the School Board; (C) the Trust Agreements and the Assignment Agreements create a valid and enforceable pledge and assignment of the Corporation’s rights in and to the Leases, respectively, except for certain rights to indemnification, to hold title to the Facilities and to receive notice, and the money and securities held by the Trustee in the funds and accounts established under the Trust Agreements, in favor of the Trustee for the benefit of the holders of the Series 2010B Certificates, on a parity (relating to the Series 2001A-1 Lease) with the Outstanding Series 2001A Certificates and the Series 2004A Certificates allocable to the Series 2001A-1 Lease, and on a parity (relating to the Series 2001B-1 Lease) with the Outstanding Series 2001B Certificates and the Series 2004B Certificates allocable to the Series 2001B-1 Lease; (D) the Corporation has full power and authority to adopt the Corporation Resolutions and to enter into each of the Corporation Documents; (E) the Corporation Resolutions have been duly adopted by the Corporation, the Series 2010B Certificates have been duly authorized and delivered by the Corporation and each of the Corporation Documents has been duly authorized, executed and delivered by all parties thereto, the Corporation and the terms constitutes valid and conditions of all binding agreements of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated Corporation enforceable in accordance with their respective terms, except that the cardioCORE Acquisition enforceability of such instruments may be limited by applicable bankruptcy, insolvency and other laws affecting the enforcement of creditors’ rights generally and, to the extent that certain remedies in such instruments require, or may require, enforcement by a court of equity, by such principles of equity as the court having jurisdiction may impose; (F) the statements contained in the Offering Statement relating to the Corporation, the Series 2010B Certificates or any of the Corporation Documents under the headings (unless otherwise noted, the term “headings” includes all subheadings under a heading) entitled “INTRODUCTION,” “THE SERIES 2010B CERTIFICATES” (excluding the information under the subheading “Book-Entry Only System”), “SECURITY FOR THE SERIES 2010B CERTIFICATES,” “THE LESSOR,” “THE SERIES 1991A-1 FACILITIES, SERIES 1992A-1 FACILITIES, SERIES 2001A-1 FACILITIES AND SERIES 2001B-1 FACILITIES,” “THE MASTER LEASE PROGRAM,” “THE SERIES 1991A-1 LEASE, SERIES 1992A-1 LEASE, SERIES 2001A-1 LEASE AND SERIES 2001B- 1 LEASE,” and “LITIGATION” are, to the best of the Corporation’s Counsel’s knowledge after due inquiry with respect thereto, true, correct and complete and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (G) the adoption of the Corporation Resolutions, the execution of the Corporation Documents, prepayment of the Refunded Certificates, delivery of the Series 2010B Certificates at the direction of the Corporation and compliance by the Corporation with the provisions thereof, under the circumstances contemplated thereby, do not and will not in any material respect conflict with or constitute on the part of the Corporation a breach of or default under any agreement or other instrument to which the Corporation is a party or any of its property is subject, or any existing law, regulation, court order or consent decree to which the Corporation or any of its property is subject, which would have a material adverse effect on the issuance of the Series 2010B Certificates or the transactions contemplated thereby; (H) there is no action, suit, proceeding or investigation before or by any court, public board or body pending or threatened against or affecting the Corporation wherein an unfavorable ruling or decision would materially adversely affect the transactions contemplated by the Offering Statement or the Corporation Documents, or the validity of the Series 2010B Certificates or any of the Corporation Documents, except as disclosed in the Offering Statement; (I) all authorizations, consents, approvals and reviews of governmental bodies or regulatory authorities required for the Corporation’s adoption of the Corporation Resolutions and execution, delivery, acceptance or performance of the Series 2010B Certificates and each of the Corporation Documents have been obtained or effected, except that the offer and sale of the Series 2010B Certificates in certain jurisdictions may be subject to the provisions of the securities or “blue sky” laws of such jurisdictions; in addition, the Corporation’s Counsel shall state in his letter containing the foregoing opinion, or in a separate letter dated the date of the Closing and addressed to the Underwriters, that based upon the examinations which he has made as the Corporation’s Counsel, and without having undertaken to determine independently the accuracy or completeness of the statements contained in the Offering Statement (other than as set forth in item (F) above), nothing has come to his attention which would lead him to believe that the information in the Offering Statement (except for the financial statements and other financial data included in the Offering Statement, and any information regarding DTC and its book- entry only system, the Series 2010B Credit Facility and the Series 2010B Credit Facility Issuer, as to which no view need be expressed) contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(iv) the opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP and the Law Offices of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, P.A., as counsel for the Underwriters, dated the date of the Closing and addressed to the Underwriters, relating to the Offering Statement and to compliance with the requirements of the Rule;
(v) the opinion of counsel for the Trustee, dated the date of Closing and addressed to the Underwriters, the School Board, the Corporation, the Trustee and the Series 2010B Credit Facility Issuer to the effect that (A) the Series 2010B Trust Agreement, the Escrow Deposit Agreement and other material related documents each of the Leases (collectively the “Trustee Documents”) and the Series 2010B Certificates each have been duly authorized, executed and delivered in connection with by the Trustee and, assuming due authorization, execution and delivery of thereof by the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lendersparties thereto, as applicable, on constitute the Closing Date.valid, binding and enforceable agreements of the Trustee (except to the extent that enforceability (but not the validity) of the rights and remedies set forth therein may be limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors’ rights generally and by such principles of equity as the court having jurisdiction may impose with respect to certain remedies which require, or may require, enforcement by a court of equity), in accordance with their terms; (B) the Truste
Appears in 1 contract
Sources: Certificate Purchase Agreement
Conditions to Closing. The obligation obligations of each Lender to enter into consummate the transactions contemplated herein and become bound to make the Advance under this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made Term Loan on the Closing Date, shall be Date (the “Closing Date Advance”) are subject to the receipt by Agent satisfaction, in the sole judgment of each agreementLender, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionfollowing:
(a) evidence of the consummation of the transactions (other than the funding of the Loan) contemplated Interim Financing Order shall be in effect and shall not have been reversed, modified, amended or stayed, and no motion seeking a reversal, modification, amendment or stay shall have been filed by the Operative Documents includingany Person that, without limitationin Lender’s sole discretion, the funding of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or could result in the aggregate, reasonably be expected to have a Material Adverse Effect;
(b) the Sale Procedures Order shall have been entered by the Bankruptcy Court and shall not have been reversed, modified, amended or stayed, and no motion seeking a reversal, modification, amendment or stay shall have been filed by any Person that, in Lender’s sole discretion, could result in a Material Adverse Effect;
(c) the Reorganization Milestones shall have been achieved or are achievable;
(d) each Credit Party shall have delivered to Lender, all in form and substance satisfactory to Lender, the receipt Loan Documents, each duly executed by an authorized officer of each Credit Party and the initial Borrowing Base Certificate, prepared as of the Closing Dateother parties thereto;
(e) receipt of copiesLender shall have received (i) each Credit Party’s formation and organization documents in form and substance acceptable to Lender, certified as true, complete and correct by the Borrowing Representative, (ii) certificates of the final cardioCORE Acquisition Agreementcorporate secretary of each Credit Party dated the Closing Date as to the incumbency and signature of the Persons executing the Loan Documents, complete with all schedules in form and exhibits theretosubstance acceptable to Lender;
(f) Lender shall have received such other documents, certificates, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreementinformation as Lender may request, all as executed in form and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be substance reasonably satisfactory to Agent Lender and Lenders and their respective counsel in their sole discretionits counsel; and
(fg) receipt by Agent no Default or Event of evidence reasonably satisfactory Default shall exist on the Closing Date, after giving effect to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery all of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required extensions of credit to be approved by Agent, Required Lenders or Lenders, as applicable, made to Borrowers on the Closing Date.
Appears in 1 contract
Conditions to Closing. The obligation Your obligations hereunder shall be subject, in your discretion, to the condition that all representations and warranties and other statements of the Company herein are, at and as of the SEC Effective Date and each Lender to enter into and become bound under this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be subject to the receipt by Agent of each agreement, document true and instrument set forth on the closing checklist prepared by Agent or its counsel, each correct in form and substance satisfactory to Agentall material respects, and such other closing deliverables reasonably requested by Agent and Lendersthe condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionadditional conditions:
(a) evidence of The Registration Statement shall have become effective under the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative DocumentsAct;
(b) If required by law, the payment Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the Regulations and in accordance with Section 1 (a) of this Agreement; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all fees, expenses and other amounts due and payable under each Financing Documentrequests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(ci) Since December 31, 2011, there has been no development, event, act, condition or occurrence The Company (including its subsidiaries) shall not have sustained since the date of any nature that has occurred that has had or could, either individually or the latest audited financial statement included in the aggregateProspectus, reasonably be expected any loss or interference with its business, fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, and (ii) since the respective dates as of which information is given in the Prospectus there shall not have been any change in the capital stock or long-term debt of the Company as a whole or any change, or any development involving a prospective change, in or affecting the general affairs, prospects, management, financial position, shareholders’ equity or results of operations of the Company (including its subsidiaries) otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your reasonable judgment so material and adverse as to have a Material Adverse Effectmake it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being issued at such Closing Date on the terms and in the manner contemplated by the Prospectus;
(d) On or after the receipt date hereof there shall not have occurred any of the initial Borrowing Base Certificatefollowing: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or the American Stock Exchange; (ii) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (iii) any outbreak or escalation of hostilities, prepared as declaration by the United States of a national emergency or war, or other calamity or crisis if the effect of any such event specified in this clause in your reasonable judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being issued at such Closing Date;Date on the terms and in the manner contemplated in the Prospectus; or (iv) such a material adverse change in general economic, political, financial or international conditions affecting financial markets in the United States having a material adverse impact on trading prices of securities in general, as, in your reasonable judgment makes it inadvisable to proceed with the sale of the Shares through you; and
(e) receipt If requested by you, the Company shall have furnished or caused to be furnished to you at such Closing Date certificates of copiesofficers of the Company satisfactory to you as to the accuracy in all material respects of the representations and warranties of the Company, certified herein at and as true, complete of such Closing Date and correct as to the performance in all material respects by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions Company of all of its obligations hereunder to be performed at or prior to such Closing Date, together with an opinion of counsel to the foregoing shall be satisfactory to Agent Company and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent a comfort letter from the Company’s independent accountants customary for transactions of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt oftype, and consented to such other information and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, documents as applicable, on the Closing Dateyou may reasonably request.
Appears in 1 contract
Conditions to Closing. The obligation of each Lender to enter into and become bound under this Agreement and make the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, of Administrative Agent to issue any Support Agreements on the date of this Agreement and of any LC Issuer to issue any Lender Letter of Credit on the date of this Agreement shall be subject to the receipt by Administrative Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counselClosing Checklist, each in form and substance reasonably satisfactory to Administrative Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Administrative Agent and Lenders and their respective counsel in their sole reasonable discretion:
(a) evidence of the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document, including, without limitation, the Administrative Agent Fee Letter;
(b) the satisfaction of Administrative Agent as to the absence, since June 30, 2007, of any Material Adverse Effect or any event or condition which could reasonably be expected to result in a Material Adverse Effect;
(c) Since December 31all other transactions contemplated to occur in connection with the closing of this loan and letter of credit facility shall have been consummated in accordance with applicable Law and the documentation relating thereto, 2011which shall be satisfactory to Administrative Agent and the Lenders in form and substance;
(d) no Default or Event of Default shall have occurred and shall be continuing;
(e) all governmental and third party approvals, there has if any, necessary in connection with the closing of this loan and letter of credit facility and the transactions contemplated to occur in connection therewith shall have been no developmentobtained and shall be in full force and effect, eventand final and non-appealable;
(f) Borrower, the other Credit Parties and such other Persons reasonably requested by Administrative Agent shall have entered into such new Financing Documents and/or modifications to the Financing Documents, and shall have delivered such other documents, instruments and agreements in respect of the Loans and the Financing Documents as Administrative Agent may reasonably request;
(g) There shall not have occurred any act, condition or occurrence of any other nature that has occurred that has had whatsoever (including, without limitation, any pending or couldthreatened Litigation with respect to the Merger or otherwise) which, either individually in any such case, whether singly or in the aggregate, and whether or not related, in the reasonable judgment of Administrative Agent has had or could reasonably be expected to have a Material Adverse Effectmaterial adverse change in, or a material adverse effect upon, any of (i) the condition (financial or otherwise), operations, business, properties or prospects of SSG or any of the other Credit Parties, (ii) the rights and remedies of Administrative Agent or Lenders under any Financing Document, or the ability of any Credit Party to perform any of its obligations under any Financing Document to which it is a party, whether prior or subsequent to the Acquisition, (iii) the legality, validity or enforceability of any Financing Document, whether prior or subsequent to the Merger, or (iv) the existence, perfection or priority of any security interest granted in any Financing Document or the value of any material Collateral, whether prior or subsequent to the Merger;
(dh) Borrower shall have validly subscribed to and continued to maintain the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date;
(e) receipt of copies, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete WCMA Account with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties theretoMLPF&S, and the terms WCMA Account shall then be reflected as an active “commercial” WCMA Account (i.e., one with line of credit capabilities) on MLPF&S’ WCMA computer system and conditions of all Borrower’s subscription to the WCMA Program shall be in effect (it being understood that no activation by WCMA Lender of the foregoing WCMA Line of Credit for a nominal amount shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretiondeemed evidence of the satisfaction of any of the conditions set forth above, or a waiver of any of those conditions); and
(fi) receipt Receipt by Administrative Agent of evidence such other information (financial or otherwise), documents, instruments and/or agreements as Administrative Agent may reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Daterequest.
Appears in 1 contract
Conditions to Closing. The Lender's obligation of each Lender to enter into and become bound under this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be Amendment are subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each having been satisfied in full to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionLender's satisfaction:
(a) evidence Execution and delivery of the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documentsthis Amendment to Lender;
(b) Execution and delivery by Advanced Management of an allonge to the payment of all fees, expenses and other amounts due and payable under each Financing DocumentRevolving Credit Note;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence Execution and delivery by Advanced Management of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected an allonge to have a Material Adverse EffectTerm Note A (Acquisition Line);
(d) the receipt Execution and delivery by Advanced Management of the initial Borrowing Base Certificate, prepared as of the Closing DateUCC-1 financing statements for filing in all jurisdictions which Lender may deem appropriate;
(e) receipt Delivery of copies, certified as true, complete copies of resolutions of Borrowers' board of directors authorizing execution of this Amendment and correct by the Borrowing Representative, each document required under any provision hereof;
(f) Delivery of the final cardioCORE Acquisition Agreement, complete with all schedules certified copies of resolutions of Advanced Management's board of directors authorizing execution of this Amendment and exhibits thereto, and all material related documents executed and delivered in connection with the execution each document required under any provision hereof;
(g) Execution and delivery of such other documents, instruments and writings, in form satisfactory to Lender, as Lender may reasonably require to carry out the cardioCORE Acquisition intentions of parties hereunder;
(h) Except as set forth in Section 12 of this Amendment, no Event of Default shall have occurred under the Loan Agreement and be continuing and no event shall have occurred which with the passage of time, the giving of notice or both would constitute an Event of Default under the Loan Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all ;
(i) Payment of the foregoing shall be satisfactory Amendment Fee by Borrowers to Agent and Lenders and their respective counsel in their sole discretionLender; and
(fj) receipt Payment or reimbursement to Lender for all legal expenses incurred by Agent of evidence reasonably satisfactory Lender to Agent that the cardioCORE Acquisition has been closed analyze, prepare and consummated in accordance with the cardioCORE Acquisition Agreement negotiate and other material conclude this Amendment and all related documents executed agreements and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Datetransactions described herein.
Appears in 1 contract
Sources: Loan and Security Agreement (Staff Builders Inc /De/)
Conditions to Closing. The obligation Underwriters have entered into this Certificate Purchase Agreement in reliance upon the representations and agreements of each Lender to enter into the Corporation and become bound the School Board herein and the performance by the Corporation and the School Board of their obligations hereunder, both as of the date hereof and as of the date of the Closing. The Underwriters’ obligations under this Certificate Purchase Agreement are and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall will be subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionfurther conditions:
(a) evidence at the time of the consummation Closing (i) each of the transactions Corporation Documents and the School Board Documents will be in full force and effect and will not have been amended, modified or supplemented except as may have been agreed to in writing by the Manager,
(other than ii) the funding proceeds of the Loansale of the Series 2012A Certificates will be applied as described in the Offering Statement, and (iii) the School Board and the Corporation will have duly adopted and there shall be in full force and effect such resolutions as, in the opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, P.A. and KnoxSeaton (collectively, “Co-Special Tax Counsel”), shall be necessary to effectuate the transactions contemplated hereby and by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative DocumentsOffering Statement;
(b) the payment Underwriters shall have the right to cancel their obligations to purchase the Series 2012A Certificates, by notice from the Manager to the Corporation and School Board of all feesits election to do so, expenses if between the date hereof and other amounts due and payable under each Financing Document;the Closing:
(ci) Since December 31legislation shall have been enacted by the Congress of the United States or adopted by either House thereof or favorably reported for passage to either House of the Congress by any committee of such House to which such legislation shall have been referred for consideration, 2011or enacted by the Florida Legislature or adopted by either House thereof or favorably reported for passage to either House of the Florida Legislature by any committee of such House to which such legislation shall have been referred for consideration, there has or a decision shall have been no developmentrendered by a court of the United States or of the State of Florida or by the Tax Court of the United States, eventor any stop order, actrelease, condition regulation or occurrence no-action letter by or on behalf of the Securities and Exchange Commission or any other governmental agency having jurisdiction, shall occur or be introduced, enacted or adopted, or a ruling or an official statement shall have been made or a regulation shall have been proposed or made by or on behalf of the Treasury Department of the United States or the Internal Revenue Service or other federal or Florida authority, with respect to federal or Florida taxation upon revenues or other income of the general character to be derived by the Corporation or by any similar body, or upon interest on obligations of the general character of the Ground Leases or the Leases, or the tax treatment thereof for federal income tax purposes, or (in the case of Florida authorities only) with respect to Florida taxation on such Leases or on the Series 2012A Certificates as intangible personal property, or other action or events shall have transpired that, in the reasonable judgment of the Underwriters, would have the purpose or effect, directly or indirectly, of changing the federal income tax consequences or Florida tax consequences of any nature that has occurred that has had of the transactions contemplated in connection herewith, and that, in the reasonable judgment of the Underwriters, affects materially and adversely the market price or couldthe marketability of the Series 2012A Certificates or the ability of the Underwriters to enforce contracts for the sale of the Series 2012A Certificates; or
(ii) any event shall have occurred, or any condition shall exist that, in the reasonable judgement of the Underwriters, either individually (A) makes untrue or incorrect in any material respect any statement or information contained in the aggregateOffering Statement or (B) is not reflected in the Offering Statement but should be reflected therein in order to make the statements and the information contained therein, reasonably be expected to have a Material Adverse Effect;in light of the circumstances under which they were made, not misleading in any material respect; or
(diii) there shall have occurred any outbreak or escalation of hostilities, or declaration of war by the receipt United States, or other local, national or international emergency, calamity or crisis, including financial crisis, the effect of which on the financial markets of the initial Borrowing Base CertificateUnited States, prepared as in the sole judgement of the Closing Date;
(e) receipt of copiesUnderwriters, certified is such as true, complete and correct by to make the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and offering or delivery of the cardioCORE Acquisition AgreementSeries 2012A Certificates, all as executed contemplated by the Offering Statement, impractical or inadvisable; or
(iv) there shall be in force a general suspension of trading on the New York Stock Exchange or minimum or maximum prices for trading shall have been fixed and delivered be in force, or maximum ranges for prices of securities shall have been required and be in force on the New York Stock Exchange, or by all parties order of the Securities and Exchange Commission or any other governmental authority having jurisdiction, or there shall be in force a suspension of trading in any outstanding securities of the School Board or the Corporation; or
(v) a general banking moratorium shall have been declared by federal, Florida or New York authorities having jurisdiction and be in force, or any new restriction on transactions in securities materially affecting the free market for securities such as the Series 2012A Certificates (including the imposition of any limitation on interest rates) or the extension of credit by, or a change to the net capital requirements of, underwriters established by the New York Stock Exchange, the Securities and Exchange Commission, any other federal or Florida agency or the Congress of the United States, or by executive order, which, in the reasonable judgment of the Underwriters, materially and adversely impairs the marketability or market price of the Series 2012A Certificates; or
(vi) legislation shall be enacted, or a decision by a court of the United States shall be rendered that, in the opinion of counsel for the Underwriters, has the effect of requiring the contemplated distribution of the Series 2012A Certificates or any action or instrument pertaining thereto to be registered under the Securities Act of 1933, as amended, or under Florida law, or of requiring any of the Trust Agreements, or any instrument or act pertaining thereto, and to be qualified under the terms and conditions Trust Indenture Act of all 1939, as amended; or
(vii) there shall have been any materially adverse change in the affairs of the foregoing School Board that, in the reasonable judgement of the Underwriters, materially and adversely affects the market price or marketability of the Series 2012A Certificates or the ability of the Underwriters to enforce contracts for the sale of the Series 2012A Certificates; or
(viii) a supplement or amendment shall be satisfactory have been made to Agent the Offering Statement subsequent to the date hereof that in the reasonable judgment of the Underwriters, materially and Lenders and their respective counsel in their sole discretionadversely affects the market price or the marketability of the Series 2012A Certificates or the ability of the Underwriters to enforce contracts for the sale of the Series 2012A Certificates; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Date.
Appears in 1 contract
Sources: Certificate Purchase Agreement
Conditions to Closing. The obligation of each Lender to enter into and become bound under this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be subject following are conditions precedent to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction obligations of the following conditions precedentCompany to consummate the redemption and complete liquidation of the Member Interest at "Closing" (as defined in Section 5, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionbelow) as contemplated by this Agreement:
(a) evidence All of Member's representations and warranties contained in or made pursuant to this Agreement shall have been true and correct when made, and shall be true, correct and complete (without giving effect to any limitations based on the knowledge of the consummation representing party) as of the transactions "Closing Date" (as defined in Section 5, below) and the Closing.
(b) Member shall have performed its obligations hereunder and shall have tendered all deliveries to be made by it on or before the Closing Date or as otherwise required under this Agreement.
(c) There shall be no litigation, arbitration, suits, claims, administrative agency or other than governmental action, or any other proceeding of any kind whatsoever, pending or threatened, which could materially and adversely affect the funding ability of either party to perform its obligations under this Agreement.
(d) Following the date of this Agreement, there shall have been no material changes, threatened or actual, in (i) the physical condition of the LoanShopping Center or the Tracts (collectively, the "Property") contemplated by the Operative Documents (including, without limitation, any change relating to hazardous substances or toxic materials), reasonable wear and tear excepted, (ii) the funding net operating income of the Property, (iii) the condition of title to the Property, (iv) the availability of, or charges associated with, any utility services provided to the Property, (v) the existence of governmental licenses, permits and approvals respecting the Property or the use thereof, (vi) the availability or existence of signage for the Property, (vii) access from Property to physically open, dedicated and accepted public streets, or (viii) the terms or enforceability of any leases or rental agreements relating to the Property.
(e) No proceedings shall be pending or threatened which could (i) cause the change, redesignation or other modification of the zoning classification of, or of any building code or environmental requirements applicable to, the Property, or any portion thereof, or (ii) materially and all investments adversely affect the value of the Property or the ability of the Company to operate the Property in the manner contemplated by the Operative Documents;parties.
(bf) The Company shall be in a position to close that certain permanent loan in the payment original principal amount of all fees, expenses $46.4 million (the "GMAC Loan") which is being provided by GMAC Mortgage Corporation ("Lender") and other amounts due and payable under each Financing Document;to receive the full disbursement of the proceeds thereof concurrently with the Closing hereunder.
(cg) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in Member shall have obtained the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt consent of the initial Borrowing Base Certificateground lessor of the ground lease applicable to the Tract identified as "Tract 14" so as to permit assignment of that ground lease to Member or Assignee. So long as the Company is not in default under any material provision of this Agreement, prepared if any condition to close has not been satisfied as of the Closing Date;
(e) receipt of copies, certified as truethe Company may, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their its sole discretion; and
, (fA) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition terminate this Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page written notice to this AgreementMember on or before the Closing Date, (B) elect to extend the Closing for a period up to ninety (90) days to facilitate the satisfaction of such condition, or (C) elect to consummate the transactions notwithstanding the non-satisfaction of such condition, in which event such party shall be deemed to have acknowledged receipt ofwaived any such condition. Notwithstanding the foregoing, and consented the failure of a condition due to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Datebreach of a party shall not relieve such breaching party from any liability it would otherwise have hereunder.
Appears in 1 contract
Conditions to Closing. The obligation several obligations of each Lender the Underwriters to purchase and pay for the Certificates pursuant to this Agreement are subject to the accuracy of and compliance with the representations and warranties of the Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the officers of the Company made in any certificate furnished pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder and to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading in the rating accorded any of the securities of the Company by ▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's Ratings Service, nor shall any notice have been given of (i) any intended or potential downgrading or (ii) any review or possible change in such rating.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change, or any development reasonably likely to result in a material adverse change, in the financial condition or in the earnings or business affairs of the Company from that set forth or contemplated in the Prospectus, that, in your judgment, makes it impracticable to market the Certificates on the terms and in the manner contemplated in the Prospectus.
(c) You shall have received on the Closing Date a certificate, dated the Closing Date and signed by a Vice President, Treasurer or Assistant Treasurer of the Company, to the effect (i) that no event set forth in clause (a) above has occurred, (ii) that the representations and warranties of the Company contained herein are true and correct as of the Closing Date (except to the extent that a representation or warranty expressly relates to an earlier or later date, in which case it will be true and correct as of such date), (iii) that there shall not have occurred any material adverse change, or any development reasonably likely to result in a material adverse change, in the financial condition or in the earnings or business affairs of the Company from that set forth or contemplated in the Prospectus, and (iv) that the Company shall have performed in all material respects all of its obligations to be performed hereunder on or prior to the Closing Date. The officer signing and delivering such certificate may rely on the best of his or her knowledge.
(d) You shall have received on the Closing Date an opinion, dated the Closing Date, from the General Counsel, Deputy General Counsel or Associate General Counsel of the Company, in form satisfactory to you and your counsel, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware and has all necessary corporate power and authority under such laws to own its properties, to conduct its business as described in the Prospectus, to enter into this Agreement and become bound each of the Operative Documents to which it is a party and to perform its obligations hereunder and thereunder (except where the failure to have such power or authority would not have a material adverse effect on the Company); and the Company is duly qualified to transact business as a foreign corporation in good standing in each jurisdiction in which its ownership of property or the conduct of its business requires such qualification (except where the failure to so qualify would not have a material adverse effect upon the Company);
(ii) The Company is an "air carrier" and a "citizen of the United States" within the meaning of the Transportation Code, and holds an air carrier operating certificate issued pursuant to chapter 447 of Title 49 of the United States Code; the descriptions in the Registration Statement and the Prospectus with respect to statutes, contracts, administrative orders and regulations and legal and governmental proceedings are accurate and fairly summarize the information required to be shown; and there are, to the best of such counsel's knowledge, no statutes, administrative orders or regulations or pending or threatened legal or governmental proceedings required to be described in the Registration Statement or the Prospectus which are not described as required, nor any contracts or documents of a character required to be described or referred to in the Registration Statement or the Prospectus, or to be filed as exhibits to the Registration Statement, that are not so described, referred to or filed as required;
(iii) The statements in the Prospectus as to the routes that the Company presently operates or is authorized to operate are correct in all material respects. Except as disclosed in the Prospectus, no action or proceeding has been instituted or to such counsel's knowledge, has been threatened by the United States Department of Transportation, the Federal Aviation Administration or the aeronautical authorities of any other country that would impair the Company's ability to operate such routes;
(iv) This Agreement has been duly authorized, executed and delivered by the Company;
(v) No authorization, approval, consent, license, order of, or registration with, or the giving of notice to, any government, governmental instrumentality, or court, domestic or foreign, or other regulatory body or authority (other than with respect to the effectiveness of the Registration Statement under the 1933 Act or the qualification of the Basic Agreement under the 1939 Act and other than with respect to the securities or Blue Sky laws of the various states and with respect to any registration, filing or recording that may be required under the Transportation Code and the Uniform Commercial Code as in effect in various jurisdictions) is required to be obtained or made by the Company for the valid authorization, issuance, sale and delivery of the Certificates and the Equipment Notes relating thereto or for the valid authorization, execution, delivery and performance by the Company of this Agreement and each of the Operative Documents to which the Company is a party or the consummation of the transactions contemplated by this Agreement and such Operative Documents;
(vi) The execution and delivery by the Company of this Agreement and the Operative Documents to which the Company is or will be a party, the issuance and sale of the Certificates and the related Equipment Notes, the issuance of the Escrow Receipts attached to the Certificates, the consummation by the Company of the transactions contemplated herein and therein and in the Prospectus and compliance with the terms hereof and thereof do not and will not result in any violation of the charter or by-laws of the Company and do not and will not conflict with or violate, or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company under (A) any indenture, mortgage or loan agreement, or any other Financing agreement or instrument known to such counsel, to which the Company is a party or by which either it be bound or to which any of its properties may be subject (except for such conflicts, breaches, defaults, violations, liens, charges or encumbrances that, individually or in the aggregate, would not have a material adverse effect on the financial condition or on the earnings or business affairs of the Company and its subsidiaries considered as a single entity), (B) any existing applicable law, rule or regulation (other than the securities or Blue Sky laws of the various states, as to which such counsel need express no opinion) or (C) any judgment, order or decree known to such counsel of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its properties;
(vii) No default exists in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, loan agreement, note, lease or other agreement or instrument that is described or referred to in the Registration Statement or the Prospectus or filed as an exhibit to the Registration Statement;
(viii) Except as disclosed in the Prospectus, there is no action, suit or proceeding before or by any government, governmental instrumentality or court, domestic or foreign, now pending or, to the knowledge of such counsel, threatened against or affecting the Company that might reasonably be expected to result in any material adverse change in the financial condition or in the earnings or business affairs of the Company, or that could adversely affect the consummation of the transactions contemplated by this Agreement or any of the other Operative Documents to which the Company is a party; and
(ix) Such counsel has participated in the preparation of the Registration Statement, the Prospectus and the documents incorporated by reference in the Prospectus and such counsel has no reason to believe (A) that the Registration Statement or any amendment thereto (except for the financial statements and other financial or statistical data included or incorporated by reference therein or omitted therefrom, and except for the Statement of Eligibility on Form T-1 of the Trustee, as to which such counsel need express no opinion), at the time the Registration Statement became effective, contained and, if applicable make as of the date such opinion is delivered, contains any initial Loans requested by Borrowers untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or (B) that the Prospectus or any amendment or supplement thereto (except for (1) the financial statements and other financial or statistical data included or incorporated by reference therein or omitted therefrom and (2) statements in or omissions from the Prospectus made on with respect to information relating to the Policy Provider, as to both of which such counsel need express no opinion), at the time the Prospectus was issued, at the time any amended or supplemented Prospectus was issued or as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(e) You shall have received on the Closing Date an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company, in form and substance reasonably satisfactory to you and substantially to the effect set forth in Exhibit A hereto.
(f) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇, LLP, counsel for State Street Bank and Trust Company of Connecticut, National Association, individually and as Trustee, Subordination Agent and Paying Agent, dated the Closing Date, in form and substance reasonably satisfactory to you and substantially to the effect set forth in Exhibit B hereto.
(g) You shall have received on the Closing Date an opinion of ▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Escrow Agent, dated the Closing Date, in form and substance reasonably satisfactory to you and substantially to the effect set forth in Exhibit C hereto.
(h) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special New York counsel for the Liquidity Provider, dated the Closing Date, in form and substance reasonably satisfactory to you and substantially to the effect set forth in Exhibit D-1 hereto and an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Kelwing ▇▇▇▇▇, special German counsel for the Liquidity Provider, dated the Closing Date, in form and substance reasonably satisfactory to you and substantially to the effect set forth in Exhibit D-2 hereto.
(i) You shall have received on the Closing Date the opinion of ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special U.S. counsel for the Depositary for the Trusts, dated the Closing Date, in form and substance reasonably satisfactory to you and substantially to the effect set forth in Exhibit E hereto.
(j) You shall have received on the Closing Date the opinion of Clifford Chance, Dutch counsel for the Depositary for the Trusts, dated the Closing Date, in form and substance reasonably satisfactory to you and substantially to the effect set forth in Exhibit F hereto.
(k) You shall have received the opinion, dated as of the Closing Date, of the General Counsel for the Policy Provider, in form and substance reasonably satisfactory to you and substantially to the effect set forth in Exhibit G.
(l) You shall have received the opinion of ▇▇▇▇ ▇▇▇▇▇▇▇, special counsel to the Policy Provider, dated as of the Closing Date, in form and substance reasonably satisfactory to you and substantially to the effect set forth in Exhibit H.
(m) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, as counsel for the Underwriters, dated as of the Closing Date, with respect to the issuance and sale of the Certificates, the Registration Statement, the Prospectus and other related matters as the Underwriters may reasonably require.
(n) On the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act and no proceedings therefor shall have been instituted or threatened by the Commission.
(o) Each of the Appraisers shall have furnished to the Underwriters a letter from such Appraiser, addressed to the Company and dated the Closing Date, confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the Company or any of its affiliates, (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates and (iii) is not connected with the Company or any of its affiliates as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
(p) At the Closing Date, each of the Operative Documents (other than the Indentures, Leases and Participation Agreements) shall have been duly executed and delivered by each of the parties thereto; the representations and warranties of the Company contained in each of such executed Operative Documents shall be subject true and correct in all material respects as of the Closing Date (except to the receipt extent that they relate solely to an earlier or later date, in which case they shall be true and correct as of such earlier or later date) and the Underwriters shall have received a certificate of the President or a Vice President of the Company, dated as of the Closing Date, to such effect.
(q) On the Closing Date, the Certificates shall be rated "AAA" by Agent Standard & Poor's Ratings Service and "Aaa" by ▇▇▇▇▇'▇ Investors Service, Inc.
(r) The Underwriters shall have received on each of each agreementthe date of this Agreement and the Closing Date, document and instrument set forth on a letter dated the closing checklist prepared by Agent date hereof or its counselthe Closing Date, each as the case may be, in form and substance satisfactory to Agentthe Underwriters, from the Company's independent public accountants, containing statements and such other closing deliverables reasonably requested by Agent and Lenders, and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the satisfaction of financial statements and certain other financial or statistical data and certain financial information contained in or incorporated by reference into the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a) evidence of the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date;
(e) receipt of copies, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, Registration Statement and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing DateProspectus.
Appears in 1 contract
Conditions to Closing. The obligation Unless waived by the Managers, the several obligations of each Lender the Underwriters hereunder are subject to enter into the accuracy of the representations and become bound under this warranties on the part of the Company contained herein as of the date of the Underwriting Agreement and the other Financing Documents and, Closing Date (as if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall ) and the performance by the Company of all the obligations to be subject performed by it under this Agreement on or prior to the receipt by Agent of each agreement, document Closing Date and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionconditions:
(a) evidence Subsequent to the Applicable Time and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the consummation possible change, in the rating accorded the Company or any of the transactions (other than the funding securities of the LoanCompany by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) contemplated by of the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;Exchange Act.
(b) No stop order suspending the payment effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission, and there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business, properties or operations of the Company and its consolidated subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus, that, in the judgment of the Managers, is material and adverse and that makes it, in the judgment of the Managers, impracticable or inadvisable to market or deliver the Offered Securities on the terms and in the manner contemplated in the Time of Sale Prospectus; and the Managers shall have received, on the Closing Date, a certificate, dated the Closing Date and signed by either the chief executive officer or chief financial officer of the Company, to the foregoing effect. Such certificate will also provide that the representations and warranties of the Company contained herein are true and correct as of the Closing Date and that the Company has complied with all fees, expenses agreements and other amounts due and payable under each Financing Document;satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date. The officer making such certificate may rely upon the best of his knowledge as to proceedings threatened.
(c) Since December 31The Managers shall have received on the Closing Date an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇, 2011Senior Vice President, there General Counsel and Corporate Secretary of the Company (or another lawyer of the Company reasonably satisfactory to the Underwriters), dated the Closing Date, addressed to the Managers to the effect (as applicable) that:
(i) each of the Company and Kansas Gas and Electric Company (the “Principal Subsidiary”) has been no developmentduly incorporated, eventis validly existing as a corporation in good standing under the laws of the State of Kansas and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification (except where the failure to so qualify would not have a material adverse effect upon the business or financial condition of the Company and its subsidiaries, actas a whole);
(ii) all of the issued shares of capital stock of the Principal Subsidiary have been duly and validly authorized and issued, condition are fully paid and non-assessable, and (except for directors’ qualifying shares and except as otherwise set forth in the Time of Sale Prospectus and the Prospectus) are owned directly and indirectly by the Company, free and clear of all liens, encumbrances, equities or occurrence claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that he believes that both the Managers and he are justified in relying upon such opinions and certificates);
(iii) the Company has an authorized capitalization as set forth in the Time of Sale Prospectus and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iv) each of the indenture dated as of August 1, 1998 (the “Senior Indenture”) between the Company and Deutsche Bank Trust Company Americas, as successor to Bankers Trust Company, as trustee (the “Senior Debt Trustee”), the indenture to be dated as of a date indicated in a relevant prospectus supplement (the “Subordinated Indenture”) between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Subordinated Debt Trustee”), the Mortgage and Deed of Trust, dated July 1, 1939, between the Company and The Bank of New York Mellon Trust Company, N.A., as successor to ▇▇▇▇▇▇ Trust and Savings Bank, as trustee (the “Mortgage Bond Trustee”), as amended and supplemented by [ ] indentures supplemental thereto (such Mortgage and Deed of Trust, as heretofore amended and supplemented, the “Mortgage”) and as to be amended and supplemented by the supplemental indenture, to be dated as of a date indicated in a relevant prospectus supplement (the “Supplemental Indenture”) (the Mortgage, as so amended and supplemented by such supplemental indentures, the “Amended Mortgage”), has been duly authorized, executed and delivered by the Company;
(v) assuming the due authorization, execution and delivery by the other parties thereto, the Amended Mortgage constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability;
(vi) the Amended Mortgage has been duly recorded and filed in each place in which such recording or filing is required to protect and preserve the lien of the Amended Mortgage, and all taxes and recording or filing fees required to be paid in connection with the execution, recording or filing of the Amended Mortgage have been duly paid;
(vii) the Company has good and sufficient title to, or a satisfactory easement in, all the real property, and has good and sufficient title to all the personal property described in the Amended Mortgage as owned by it and subject to the lien of the Amended Mortgage, except any which may have been released from the lien thereof pursuant to the provisions thereof, subject only to (a) minor leases and liens of judgments not prior to the lien of the Amended Mortgage, which, in such counsel’s opinion, do not interfere with the Company’s business, (b) minor defects, irregularities and deficiencies in titles of properties and rights-of-way which, in such counsel’s opinion, do not materially impair the use of such property and rights of- way for the purposes for which they are held by the Company, and (c) other permitted liens as defined in the Amended Mortgage; subject to the qualifications set forth in this Section 4(c)(vii), the Amended Mortgage constitutes a valid, direct first mortgage lien upon said properties and upon all franchises owned by the Company, which properties and franchises include all the physical properties and franchises of the Company (other than classes of property expressly excepted in the Amended Mortgage); all physical properties and franchises (other than classes of property expressly excepted in the Amended Mortgage as aforesaid) thereafter acquired by the Company will, upon such acquisition, become subject to the lien thereof, subject, however, to liens permitted thereby and to any liens existing or placed upon such properties at the time of the acquisition thereof by the Company and except as described in the Time of Sale Prospectus and the Prospectus; and the descriptions of all such properties and assets contained in the granting clauses of the Amended Mortgage are correct and adequate for the purposes of the Amended Mortgage;
(viii) the Warrant Agreement, if any, has been duly authorized, executed and delivered by the Company;
(ix) the Unit Agreement, if any, has been duly authorized, executed and delivered by the Company;
(x) the Offered Securities have been duly authorized, executed, and delivered by the Company;
(xi) when the Offered Securities have been duly executed and authenticated in accordance with the provisions of the relevant Senior Indenture, Subordinated Indenture or Amended Mortgage, the Offered Securities will be valid and binding obligations of the Company, enforceable against them in accordance with their terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and will be entitled to the benefits of the relevant Senior Indenture, Subordinated Indenture or Amended Mortgage and to the lien of the Amended Mortgage;
(xii) this Agreement has been duly authorized, executed and delivered by the Company;
(xiii) except as rights to indemnity and contribution under this Agreement may be limited under applicable law, the execution and delivery by the Company of, and the performance by the Company of its obligations under this Agreement, the Senior Indenture, the Subordinated Indenture, the Amended Mortgage, the Offered Securities, the Warrant Agreement and the Unit Agreement will not contravene any provision of the laws of the State of Kansas or any federal law of the United States of America (including laws relating specifically to electric utility companies and the electric utility industry) that in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the topic contemplated by this Agreement, or, to the best knowledge of such counsel, of any nature other state or jurisdiction of the United States, or the articles of incorporation or by-laws (or similar organizational document) of the Company or, to the best knowledge of such counsel, any material agreement or other material instrument binding upon the Company, the Senior Indenture, the Subordinated Indenture, the Amended Mortgage, the Offered Securities, the Warrant Agreement and the Unit Agreement, provided that has occurred such counsel need not express an opinion as to federal or state securities or Blue Sky laws, and no consent, approval or authorization of any governmental body or agency under the laws of the State of Kansas or any federal law of the United States of America (except with respect to consents, approvals and authorizations relating specifically to the public utility companies or the utilities industry, as to which such counsel is not called upon to express any opinion) that has had in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the topic contemplated by this Agreement, or, to the best knowledge of such counsel, of any other state or couldjurisdiction of the United States of America or of any foreign jurisdiction is required for the performance by the Company of its obligations under this Agreement, either the Senior Indenture, the Subordinated Indenture, the Amended Mortgage, the Offered Securities, the Warrant Agreement, and the Unit Agreement provided that such counsel need not express an opinion as to federal or state securities or Blue Sky laws;
(xiv) each of the Company and the Principal Subsidiary possesses valid franchises, certificates of convenience and authority, licenses and permits authorizing it to carry on the electric utility business in which it is engaged, except in the cases that the failure to possess such franchises, certificates, licenses or permits, individually or in the aggregate, would not be reasonably expected to have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole, and neither the Company nor the Principal Subsidiary has received any notice of proceedings relating to the revocation or modification of any such franchise, certificate of convenience and authority, license or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effectmaterial adverse effect, except as set forth in or contemplated in the Time of Sale Prospectus and the Prospectus;
(dxv) the receipt statements (A) in Item 3 of the initial Borrowing Base CertificateCompany’s most recent Annual Report on Form 10-K incorporated by reference in the Time of Sale Prospectus and the Prospectus, prepared as (B) in Part II, Item 1 under the caption “Legal Proceedings” of the Closing DateCompany’s most recent Quarterly Report on Form 10-Q incorporated by reference in the Time of Sale Prospectus and (C) in the Registration Statement in Item 15, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings;
(exvi) receipt such counsel does not know of copiesany legal or governmental proceeding pending or threatened (including, certified as truewithout limitation, complete and correct by proceeding pending before the Borrowing Representative, State Corporation Commission of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with State of Kansas (“KCC”) or Federal Regulatory Energy Commission (“FERC”)) to which the execution and delivery Company or any of its subsidiaries is a party or to which any of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all properties of the foregoing shall Company or any of its subsidiaries is subject which is required to be satisfactory described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and is not so described, or of any contract, other document, public utility law or regulation which is required to Agent and Lenders and their respective counsel be described in their sole discretion; andthe Registration Statement, the Time of Sale Prospectus or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required;
(fxvii) receipt by Agent the securities into which the Offered Securities are convertible, initially reserved for issuance upon conversion of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has Offered Company Securities (the “Underlying Securities”), have been closed duly authorized and consummated reserved for issuance;
(xiii) when the Underlying Securities are issued upon conversion of the Offered Company Securities in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery terms of the cardioCORE Acquisition Agreement. Each LenderOffered Company Securities, by delivering its signature page such Underlying Securities will be validly issued, fully paid and non-assessable and will not be subject to this Agreement, shall be deemed any preemptive or other right to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders subscribe for or Lenders, as applicable, on the Closing Date.purchase such Underlying Securities;
Appears in 1 contract
Conditions to Closing. 6.1 Conditions to Buyer's and ▇▇▇▇▇ Subsidiary's Obligations. The obligation -------------------------------------------------------- obligations of each Lender Buyer to enter into purchase the New Shares and become bound under this Agreement and pay the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be subject to the receipt by Agent of each agreement, document and instrument New Shares Purchase Price as set forth on in Section 1.1 hereof and ▇▇▇▇▇ Subsidiary to purchase the closing checklist prepared by Agent or its counsel, each Transferred Shares and pay the Transferred Shares Purchase Price as set forth in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and Section 1.2 hereof at Closing are subject to the satisfaction of the following conditions precedent, each to on or before the satisfaction of Agent and Lenders and their respective counsel in their sole discretionClosing Date:
(a) evidence Except for breaches which do not constitute a Material Adverse Breach (as defined in Section 8.6 of this Agreement) by DSI or ▇▇▇▇, the representations and warranties set forth in Article 3 of this Agreement (including any amendments or supplements of the Disclosure Schedule made by DSI and ▇▇▇▇ pursuant to Section 5.11) will be true and correct as of the Closing Date, as though then made and as though the Closing Date were substituted for the date of this Agreement throughout such representations and warranties and with appropriate modifications of tense with respect to representations and warranties made as of a specified date except as expressly noted in Article 3;
(b) DSI and ▇▇▇▇ shall have performed, in all material respects, each obligation and agreement and complied with each covenant to be performed and complied with by them under this Agreement prior to the Closing Date, including, without limitation, all of their agreements contained in Article 5 of this Agreement;
(c) Except as otherwise disclosed on the Disclosure Schedule, all consents by governmental or regulatory agencies or otherwise that are required for the consummation of the transactions (contemplated hereby or that are required for Buyer to own, operate or control DSI or any portion of the assets of DSI or to prevent a breach of or a default under or a termination of any agreement material to DSI to which DSI is a party or to which any material portion of the assets of DSI is subject, other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any consent to transfer licenses and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has real property leases will have been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effectobtained;
(d) the receipt No action or proceeding before any court or governmental body will be pending or threatened wherein a judgment, decree or order would prevent any of the initial Borrowing Base Certificatetransactions contemplated hereby or cause such transactions to be declared unlawful or to be rescinded or which might adversely affect the right of Buyer to own, prepared operate or control DSI or any material portion of the assets of DSI or the value of the assets of DSI as of the Closing Date;
(e) receipt Prior to or at the Closing, ▇▇▇▇ shall have entered into the ▇▇▇▇ Consulting Agreement as described in Section 5.9 hereof and each of copies▇▇▇▇▇▇▇ ▇▇▇▇▇, certified ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ and ▇▇▇ ▇▇▇▇ ▇▇▇▇ (▇▇▇▇▇ ▇▇▇) (hereinafter collectively referred to as true, complete "Key Employees") shall have agreed upon and correct by entered into employment agreements with DSI for a period of at least one (1) year following the Borrowing Representative, Closing Date each containing a non-competition and non- solicitation covenant which shall remain in force for the term of employment plus one (1) year following any termination of employment and the employment contracts of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇ shall contain a provision for six months severance pay after the end of the final cardioCORE Acquisition Agreement, complete with employment term such employment contracts attached hereto as Exhibit "Q" and incorporated herein for all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and----------- purposes;
(f) receipt by Agent of evidence reasonably satisfactory Buyer and ▇▇▇▇▇ Subsidiary will have received from Chamberlain, Hrdlicka, White, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to Agent that DSI and ▇▇▇▇ Parties, an opinion addressed to Buyer, dated the cardioCORE Acquisition has been closed Closing Date and consummated containing the opinions set out in accordance with Exhibit "R" attached hereto; -----------
(g) At the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each LenderClosing, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders DSI or Lenders▇▇▇▇, as applicable, will have delivered the following: To Buyer and ▇▇▇▇▇ Subsidiary:
(i) a certificate executed on behalf of DSI by its Chief Executive Officer stating that the conditions set forth in Sections 6.1(a) through 6.1(d) of this Agreement have been satisfied;
(ii) to the extent such certificates are normally issued by the applicable jurisdiction, existence and good standing certificates for DSI and its Subsidiaries from the Secretary of State of the State of Texas, and from the appropriate governmental authority in Hong Kong and from every jurisdiction where a failure to be qualified or licensed would have a material adverse effect on the Closing Date.consolidated financial condition, results of operations or business of DSI dated not earlier than September 30, 1995, other than the Hong Kong certificate which shall be dated April 15, 1995; (iii) a copy of DSI's articles of incorporation certified by the Secretary of State of the State of Texas, and a copy of both DSI (HK) Limited and Magnifair Holdings Limited Corporate charter documents, certified by the appropriate governmental authorities of Hong Kong;
Appears in 1 contract
Conditions to Closing. SECTION 5.01. Conditions to the Obligations of the Purchasers. The obligation obligations of each Lender of the Purchasers to enter into purchase and become bound under this Agreement and pay for the other Financing Documents andShares shall, if applicable make any initial Loans requested by Borrowers to be made on the Closing Datein its sole discretion, shall be subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each at or prior to the satisfaction of Agent and Lenders and their respective counsel Closing (unless expressly waived in their sole discretion:writing by such Purchasers at or prior to the Closing):
(a) evidence On the Closing Date, the Purchasers shall have received the opinion, dated as of the consummation Closing Date and addressed to the Purchasers, of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the transactions Company, in form and substance satisfactory to counsel for the Purchasers, to the effect that:
(other than i) The Company is a corporation duly incorporated, validly existing and in good standing under the funding laws of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any Delaware and has all corporate powers and all investments contemplated by governmental licenses, authorizations, permits, consents and approvals required to carry on its business as now conducted, except for those licenses, authorizations, permits, consents and approvals the Operative Documents;
(b) the payment absence of all feeswhich would not, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, have a Material Adverse Effect. The Company is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified or in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(ii) The execution, delivery and performance by the Company of this Agreement are within the Company's corporate powers and have been duly authorized by all necessary corporate action on the part of the Company. This Agreement constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that (i) the enforcement hereof may be subject to (x) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (y) general principles of equity and the discretion of the court before which any proceeding therefor may be brought; and (ii) any rights to indemnity or contribution under hereunder or under the registration rights agreement may be limited by federal and state securities laws and public policy considerations.
(iii) The Shares, when issued and delivered to and paid for by each Purchaser pursuant to this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares is not subject to any pre-emptive or similar rights.
(iv) The execution, delivery and performance by the Company of this Agreement require no action by or in respect of, or filing with, any governmental body, agency or official other than (i) compliance with any applicable requirements of the 1934 Act; (ii) compliance with any applicable existing requirements of the Nasdaq Stock Market; and (iii) any action or filing as to which the failure to make or obtain would not, individually or in the aggregate, have a Material Adverse Effect.
(v) The execution, delivery and performance by the Company of this Agreement do not and will not (i) violate the certificate of incorporation or bylaws of the Company or any Subsidiary; (ii) (x) assuming compliance with any applicable requirements of the 1934 Act, (y) assuming compliance with any applicable existing requirements of the Nasdaq Stock Market and (z) except for any action or filing as to which the failure to make or obtain would not, individually or in the aggregate, have a Material Adverse Effect, violate any applicable law, rule, regulation, judgment, injunction, order or decree; (iii) constitute a default under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of the Company or any Subsidiary or to a loss of any benefit to which the Company or any Subsidiary is entitled under, any Contract binding upon or held by the Company or any Subsidiary; or (iv) result in the creation or imposition of any material Lien on any asset of the Company or any Subsidiary.
(vi) No registration under the 1933 Act of the Shares is required in connection with the sale of the Shares to the Purchasers as contemplated by this Agreement assuming the accuracy of the Purchasers' representations in Article 4 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Shares to the Purchasers.
(b) The representations and warranties of the Company contained in this Agreement that are qualified by materiality or Material Adverse Effect shall be true and correct in all respects and the representations and warranties of the Company contained in this Agreement that are not so qualified shall be true and correct in all material respects, in each case on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Company's officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company shall have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and subsequent to the Balance Sheet Date, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably be expected likely to have a Material Adverse Effect;.
(c) The sale of the Shares hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(d) Subsequent to the receipt Balance Sheet Date, none of the initial Borrowing Base CertificateCompany or any of the Subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, prepared flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The Purchasers shall have received a certificate of the Company, dated the Closing Date, signed on behalf of the Company by its Chief Executive Officer and its Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Company contained in this Agreement that are qualified by materiality or Material Adverse Effect are true and correct in all respects and the representations and warranties of the Company contained in this Agreement that are not so qualified are true and correct in all material respects, in each case on and as of the date hereof and on and as of the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(eii) receipt of copiesAt the Closing Date, certified since the date hereof or since the Balance Sheet Date, no event or development has occurred, and no information has become known, except as true, complete and correct by the Borrowing Representative, set forth in Section 3.09 of the final cardioCORE Acquisition AgreementDisclosure Schedule that, complete with all schedules and exhibits theretoindividually or in the aggregate, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall has or would be satisfactory reasonably likely to Agent and Lenders and their respective counsel in their sole discretionhave a Material Adverse Effect; and
(iii) The sale of the Shares hereunder has not been enjoined (temporarily or permanently).
(f) receipt by Agent The Company shall have obtained, with financially sound and reputable insurers, directors' and officers' liability insurance in the amount of evidence reasonably satisfactory coverage at least equal to Agent that the cardioCORE Acquisition has been closed and consummated in accordance $2,000,000. The Company shall have entered into indemnity contracts with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery each of the cardioCORE Acquisition Agreement. Each LenderPurchaser Nominees substantially in the form of Exhibit C hereto.
(g) Prior to the Closing Date, by delivering its signature page to (i) trading in securities generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended or limited or minimum or maximum prices shall not have been generally established on such exchange or market, or additional material governmental restrictions, not in force on the date of this Agreement, shall be deemed not have been imposed upon trading in securities generally by such exchange or market or by order of the Commission or any court or other governmental authority; (ii) trading in the Common Stock shall not have been suspended by the Commission or the Nasdaq Stock Market; (iii) a general banking moratorium shall not have been declared by either federal or New York state authorities; or (iv) any material adverse change in the financial or securities markets in the United States or in political, financial or economic conditions in the United States or any outbreak or material escalation of hostilities or declaration by the Unites States of a national emergency or war or other calamity or crisis shall not have occurred. On or before the Closing Date, the Purchasers and counsel for the Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have acknowledged receipt ofheretofore reasonably requested from the Company. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Purchasers and consented counsel for the Purchasers.
SECTION 5.02. Conditions to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required the Obligations of the Company. The obligations of the Company to be approved discharged under this Agreement on or prior to the Closing are subject to satisfaction of the following conditions at or prior to the Closing (unless expressly waived in writing by Agentthe Company at or prior to the Closing):
(a) The representations and warranties of Purchasers contained in this Agreement that are qualified by materiality or Material Adverse Effect shall be true and correct in all respects and the representations and warranties of the Company contained in this Agreement that are not so qualified shall be true and correct in all material respects, Required Lenders in each case on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date.
(b) The sale of the Shares hereunder shall not be enjoined (temporarily or Lenders, as applicable, permanently) on the Closing Date.
Appears in 1 contract
Conditions to Closing. The obligation Unless waived by the Managers, the obligations of each Lender the Forward Seller and the several obligations of the Underwriters hereunder are subject to enter into the accuracy of the representations and become bound under this warranties on the part of the Company contained herein as of the date of the Underwriting Agreement and the other Financing Documents and, Closing Date (as if applicable make any initial Loans requested by Borrowers to be made on the Closing Date), shall the performance by the Company of all of the obligations to be subject performed by it under this Agreement on or prior to the receipt by Agent of each agreement, document Closing Date and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionconditions:
(a) evidence Subsequent to the Applicable Time and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the securities of the Company by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission, and there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business, properties or operations of the Company and its consolidated subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus (exclusive of any amendments or supplements thereon effective subsequent to the date of this Agreement), that, in the judgment of the Manager, is material and adverse and that makes it, in the judgment of the Manager, impracticable or inadvisable to market or deliver the Offered Securities on the terms and in the manner contemplated in the Time of Sale Prospectus; and the Manager shall have received, on the Closing Date, a certificate, dated the Closing Date and signed by either the chief executive officer or chief financial officer of the Company, to the foregoing effect. Such certificate will also provide that the representations and warranties of the Company contained herein are true and correct as of the Closing Date and that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date. The officer making such certificate may rely upon the best of his knowledge as to proceedings threatened.
(c) The Forward Seller, the Forward Counterparty and the Manager shall have received on the Closing Date an opinion of L▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, General Counsel and Corporate Secretary of the Company (or another lawyer of the Company reasonably satisfactory to the Underwriters), dated the Closing Date, addressed to the Forward Seller, the Forward Counterparty and the Manager to the effect that:
(i) each of the Company and Kansas Gas and Electric Company (the “Principal Subsidiary”) has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Kansas and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification (except where the failure to so qualify would not have a material adverse effect upon the business or financial condition of the Company and its subsidiaries, as a whole);
(ii) the Company has an authorized capitalization as set forth in the Time of Sale Prospectus and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) all of the issued shares of capital stock of the Principal Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and (except for directors’ qualifying shares and except as otherwise set forth in the Time of Sale Prospectus and the Prospectus) are owned directly and indirectly by the Company, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that he believes that both the Manager and he are justified in relying upon such opinions and certificates);
(iv) the Company Securities have been duly authorized by the Company and, when executed and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable;
(v) this Agreement and the Forward Agreement have been duly authorized, executed and delivered by the Company;
(vi) except as rights to indemnity and contribution under this Agreement may be limited under applicable law, the execution, delivery and performance of this Agreement and the Forward Agreement by the Company and the consummation of the transactions (other than the funding contemplated herein and therein will not contravene any provision of applicable law of the LoanUnited States (including laws relating specifically to electric utility companies and the electric utility industry), Kansas, or, to the best knowledge of such counsel, of any other state or jurisdiction of the United States, or the articles of incorporation or by-laws (or similar organizational document) contemplated of the Company or, to the best knowledge of such counsel, any material agreement or other material instrument binding upon the Company, and, except for the orders of the Commission making the Registration Statement effective (which have been obtained) and such permits or similar authorizations required under the securities or Blue Sky laws of certain states or foreign jurisdictions (as to which such counsel is not called upon to express any opinion), no consent, approval or authorization of any governmental body or agency of the United States (except with respect to consents, approvals and authorizations relating specifically to the public utility companies or the utilities industry, as to which such counsel is not called upon to express any opinion), Kansas, or, to the best knowledge of such counsel, of any other state or jurisdiction of the United States or of any foreign jurisdiction is required for the performance by the Operative Documents including, without limitation, Company of its obligations under this Agreement or the funding of any and all investments contemplated by the Operative DocumentsForward Agreement;
(bvii) each of the payment Company and the Principal Subsidiary possesses valid franchises, certificates of all feesconvenience and authority, expenses licenses and other amounts due and payable under each Financing Document;
(c) Since December 31permits authorizing it to carry on the electric utility business in which it is engaged, 2011except in the cases that the failure to possess such franchises, there has been no developmentcertificates, eventlicenses or permits, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, would not be reasonably expected to have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole, and neither the Company nor the Principal Subsidiary has received any notice of proceedings relating to the revocation or modification of any such franchise, certificate of convenience and authority, license or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effectmaterial adverse effect, except as set forth in or contemplated in the Time of Sale Prospectus and the Prospectus;
(dviii) the receipt statements (A) in Item 3 of the initial Borrowing Company’s most recent Annual Report on Form 10-K incorporated by reference in the Time of Sale Prospectus and the Prospectus, (B) in Part II, Item 1 under the caption “Legal Proceedings” of the Company’s most recent Quarterly Report on Form 10-Q incorporated by reference in the Time of Sale Prospectus and (C) in the Registration Statement in Item 15, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings;
(ix) such counsel does not know of any legal or governmental proceeding pending or threatened (including, without limitation, proceeding pending before the State Corporation Commission of the State of Kansas (“KCC”) or Federal Regulatory Energy Commission (“FERC”)) to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject which is required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and is not so described, or of any contract, other document, public utility law or regulation which is required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required;
(x) the Company has complied with K.S.A. § 66-125 with respect to the issuance of the Company Securities, if any. No additional consent, approval, authorization, filing with or order of (a) FERC under the Federal Power Act, (b) the KCC or (c) to the knowledge of the Company, any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Forward Sale Agreement, except such as have been obtained under the Securities Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Time of Sale Prospectus; and
(xi) the statements in the prospectus supplement contained in the Time of Sale Prospectus and the Prospectus under “the Offering,” and in the Base CertificateProspectus under “Description of Capital Stock” and “Description of Depositary Shares,” insofar as such statements constitute a summary of the legal matters or documents referred to therein, prepared fairly present the information called for with respect to such legal matters and documents. Such counsel shall also state that no facts have come to his attention that lead him to believe (1) that the Registration Statement or any amendments thereto (except for the financial statements and other financial or related statistical data included or incorporated by reference therein or omitted therefrom, as to which such counsel is not called upon to express any belief), on the date on which it became effective or the date of filing of the most recent subsequent Annual Report on Form 10-K, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (2) that the Time of Sale Prospectus (except for the financial statements and other financial or related statistical data included or incorporated by reference therein or omitted therefrom, as to which such counsel is not called upon to express any belief), at the Applicable Time or as amended or supplemented, if applicable, as of the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (3) that the Prospectus (except for the financial statements and other financial or related statistical data included or incorporated by reference therein or omitted therefrom, as to which such counsel is not called upon to express any belief), at its date or as amended or supplemented, if applicable, at the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make statements therein, in the light of the circumstances under which they were made, not misleading; or (4) that the documents incorporated by reference in the Prospectus (except for the financial statements and other financial or related statistical data included or incorporated by reference therein or omitted therefrom, as to which such counsel is not called upon to express any belief), as of the dates they were filed with the Commission, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. With respect to the preceding paragraph, such counsel may state that his opinion and belief is based upon his participation in the preparation of the Registration Statement, Time of Sale Prospectus, Prospectus (as amended or supplemented) and the documents incorporated therein by reference and review and discussion of the contents thereof, but is without independent check or verification except as specified. In expressing his opinion as to questions of the law of jurisdictions other than the State of Kansas and the United States, such counsel may rely to the extent reasonable on such counsel as may be reasonably acceptable to counsel to the Underwriters. In addition, such counsel may reasonably rely as to questions of fact on certificates of responsible officers of the Company.
(d) The Forward Seller, the Forward Counterparty and the Manager shall have received on the Closing Date an opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, special counsel for the Company, dated the Closing Date to the effect that:
(i) the Company is not, and after giving effect to the transactions contemplated by this Agreement and the Forward Agreement will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(eii) receipt of copiesexcept as rights to indemnity and contribution under this Agreement may be limited under applicable law, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of by the cardioCORE Acquisition Agreement, all as executed and delivered by all parties theretoCompany of, and the terms performance by the Company of its obligations under this Agreement and conditions of all the Forward Agreement and the consummation of the foregoing shall be satisfactory transactions contemplated herein and therein will not contravene any provision of applicable law of the United States (except with respect to Agent laws relating specifically to public utility companies or the utilities industry, as to which such counsel is not called upon to express any opinion) or New York, and, except for the orders of the Commission making the Registration Statement effective (which have been obtained) and Lenders such permits or similar authorizations required under the securities or Blue Sky laws of certain states or foreign jurisdictions (as to which such counsel is not called upon to express any opinion), no consent, approval or authorization of any governmental body or agency of the United States (except with respect to consents, approvals and their respective authorizations relating specifically to public utility companies or the utilities industry, as to which such counsel in their sole discretionis not called upon to express any opinion) or New York is required for the performance by the Company of its obligations under this Agreement or the Forward Agreement; and
(fiii) receipt by Agent the statements in the prospectus supplement contained in the Time of evidence reasonably satisfactory Sale Prospectus and the Prospectus under “Certain U.S. Tax Considerations” and “Underwriting” and in the Base Prospectus under “Plan of Distribution,” insofar as such statements constitute a summary of the legal matters or documents referred to Agent therein, fairly present the information called for with respect to such legal matters and documents. Such counsel shall also state that no facts have come to the attention of such counsel that lead them to believe (1) that the cardioCORE Acquisition has been closed Registration Statement and consummated the Prospectus and any supplements or amendments thereto or the documents incorporated by reference in accordance the Registration Statement and Prospectus (except for financial statements and other financial or related statistical data included or incorporated by reference therein, as to which such counsel is not called upon to express any belief) did not comply as to form in all material respects with the cardioCORE Acquisition Agreement Securities Act and the rules and regulations of the Commission thereunder; (2) that the Registration Statement or any amendment thereto (except for the financial statements and other material financial or related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, statistical data included or incorporated by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders reference therein or Lendersomitted therefrom, as applicable, on the Closing Date.to which such counsel is n
Appears in 1 contract
Conditions to Closing. The obligation Closing shall be held at the offices of each Lender to enter into and become bound under this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on Investor or its counsel. The obligations of the Closing Date, Placement Agent hereunder shall be subject to the receipt by Agent continuing accuracy in all material respects of the representations and warranties of the Company and the Investor contained herein as of the date hereof and as of the date of each agreementClosing (each, document a "Closing Date") with respect to the Company or the Investor, as the case may be, as if it had been made on and instrument set forth as of such Closing Date; the accuracy on and of each Closing Date of the closing checklist prepared statements of the officers of the Company made pursuant to the provisions hereof; and the performance by Agent or the Company and the Investor on and as of each Closing Date of its counsel, each in form covenants and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, obligations hereunder and to the following further conditions:
A. The Investor and the Placement Agent shall receive a copy of the opinion of counsel to the Company referenced in Article IV of the Standby Equity Distribution Agreement.
B. At or prior to the Closing, the Investor and the Placement Agent shall have been furnished such documents, certificates and opinions as it may reasonably require for the purpose of enabling them to review or pass upon the matters referred to in this Agreement and the Offering Materials, or in order to evidence the accuracy, completeness or satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a) evidence any of the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents includingrepresentations, without limitation, the funding of any warranties or conditions herein contained.
C. At and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under prior to each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date;
(e) receipt of copies, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or LendersClosing, as applicable, (i) there shall have been no material adverse change nor development involving a prospective change in the condition or prospects or the business activities, financial or otherwise, of the Company from the latest dates as of which such condition is set forth in the Offering Materials; (ii) there shall have been no transaction, not in the ordinary course of business except the transactions pursuant to the Securities Purchase Agreement entered into by the Company on the date hereof which has not been disclosed in the Offering Materials or to the Placement Agent in writing; (iii) except as set forth in the Offering Materials and the agreements and documents referenced therein (including, but not limited to the SEC Documents), the Company shall not be in default under any provision of any instrument relating to any outstanding indebtedness in excess of Five Thousand Dollars ($5,000) for which a waiver or extension has not been otherwise received; (iv) except as set forth in the Offering Materials there shall not have been any material change in the indebtedness (long or short term) or liabilities or obligations of the Company (contingent or otherwise) and trade payable debt; (v) no material amount of the assets of the Company shall have been pledged or mortgaged, except as indicated in the Offering Materials; and (v) no action, suit or proceeding, at law or in equity, against the Company or affecting any of its properties or businesses shall be pending or threatened before or by any court or federal or state commission, board or other administrative agency, domestic or foreign, wherein an unfavorable decision, ruling or finding could materially adversely affect the properties or businesses or financial condition or income of the Company, except as set forth in the Offering Materials. Notwithstanding the foregoing, nothing in this Agreement shall prevent the Company from issuing shares of Common Stock to its officers, directors or affiliates for compensation or remuneration, or to other entities in connection with acquisitions or other transactions after the date hereof.
D. If requested at Closing the Investor and the Placement Agent shall receive a certificate of the Company signed by an executive officer and chief financial officer, dated as of the applicable Closing, to the effect that the conditions set forth in subparagraph (C) above have been satisfied and that, as of the applicable Closing Date, the representations and warranties of the Company set forth herein are true and correct in all material respects.
E. The Placement Agent shall have no obligation to insure that (x) any check, note, draft or other means of payment for the Common Stock will be honored, paid or enforceable against the Investor in accordance with its terms, or (y) subject to the performance of the Placement Agent's obligations and the accuracy of the Placement Agent's representations and warranties hereunder, (1) the Offering is exempt from the registration requirements of the 1933 Act or any applicable state "Blue Sky" law or (2) the Investor is an Accredited Investor.
Appears in 1 contract
Sources: Placement Agent Agreement (Capital Solutions I, Inc.)
Conditions to Closing. (i) The obligation of the Holder hereunder to consummate the transactions contemplated hereby at the Closing is subject to the satisfaction, at or before the Closing Date, of each Lender of the following conditions, provided that these conditions are for the Holder's sole benefit and may be waived by the Holder at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have executed and delivered this Agreement to enter into Holder;
(b) The Company and become bound under the Trustee shall have executed and delivered the Indenture;
(c) The Company shall have executed and delivered the New Notes in the aggregate principal amount set forth in Section 1.1;
(d) The Company shall have executed and delivered the Registration Rights Agreement to Holder;
(e) The Company shall have submitted an additional share listing application for the shares of Common Stock issuable upon conversion of the New Notes with the New York Stock Exchange and the shares of Common Stock issuable upon conversion of the New Notes shall have been approved by the New York Stock Exchange for listing prior to the Closing;
(f) The Company shall have delivered to the Holder and Piper Jaffray & Co. a certificate of the Company, dated the Closing ▇▇▇▇, ▇▇▇▇▇▇ed by the secretary of the Company certifying in such capacity and on behalf of the Company (i) as to the incumbency and signature of the officer of the Company who executed this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers New Notes; and (ii) as to be made the adoption of resolutions of the board of directors of the Company which are in full force and effect on the Closing Date, shall be subject to authorizing (x) the receipt by Agent execution and delivery of each agreementthis Agreement, document the Indenture, the Registration Rights Agreement and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to AgentNew Notes, and such other closing deliverables reasonably requested by Agent and Lenders, and to (y) the satisfaction performance of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a) evidence obligations of the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any Company hereunder and all investments contemplated by the Operative Documentsthereunder;
(bg) The Company shall have delivered to the payment of all fees, expenses Holder and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have Piper Jaffray & Co. a Material Adverse Effect;
(d) the receipt certificate of the initial Borrowing Base CertificateChief Executive Officer o▇ ▇▇▇▇▇ ▇▇▇▇ncial Officer of the Company, prepared dated the Closing Date, to the effect that the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and that the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(eh) receipt Simultaneously with the Closing, the Company shall issue an aggregate principal amount of copiesNew Notes that, certified together with notes issued to Other Holders (as true, complete and correct by the Borrowing Representativedefined below) is not less than $130,000,000, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with which at least $50,000,000 aggregate principal amount shall be Exchange Notes;
(i) Subsequent to the execution and delivery of this Agreement and prior to the cardioCORE Acquisition AgreementClosing Date, all as executed and delivered by all parties thereto, and there shall have been no suspension or material limitation of trading in the terms and conditions of all Common Stock on The New York Stock Exchange;
(j) The New Notes shall have been approved for trading on The PORTAL Market of the foregoing National Association of Securities Dealers, Inc., subject only to notice of issuance at or prior to the time of purchase;
(k) The Company shall be satisfactory to Agent and Lenders and their respective counsel have obtained a Committee on Uniform Securities Identification Procedures number (CUSIP number) for the New Notes;
(l) The New Notes satisfy the requirements set forth in their sole discretionRule 144A(d)(3) under the Securities Act; and
(fm) receipt The Company shall have delivered to Holder and Piper Jaffray & Co. the opinion of Hodgson Russ LLP, dated as ▇▇ ▇▇▇ ▇▇▇▇▇ng Date, in substantiall▇ ▇▇▇ ▇▇▇▇ ▇▇ Exhibit C attached hereto.
(ii) The obligation of the Company hereunder to consummate the transactions contemplated hereby at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Company's sole benefit and may be waived by Agent of evidence reasonably satisfactory the Company at any time in its sole discretion by providing the Holder with prior written notice thereof:
(a) The Holder shall have executed and delivered to Agent that the cardioCORE Acquisition has been closed Company this Agreement;
(b) The Holder shall have executed and consummated delivered to the Company the Registration Rights Agreement; and
(c) The Holder shall have delivered, or caused to be delivered, to the Company the Outstanding Notes being exchanged pursuant to this Agreement and the Purchase Price in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery written instructions of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing DateCompany.
Appears in 1 contract
Conditions to Closing. The obligation (a) At or before Closing, and contemporaneously with the acceptance of each Lender delivery of the Series Underwriter: Bonds, the District will provide to enter into and become bound under this Agreement the
(1) a certificate, signed by an official of the District, confirming to the Underwriter that the Preliminary Official Statement as of its date did not, and the other Financing Documents andOfficial Statement as of its date and at the time of Closing did not and does not, if applicable to the best of the knowledge of said official, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading, and that there has been no material adverse change in the financial condition or affairs of the District which would make it unreasonable for the Underwriter of the Series Bonds to rely upon the Official Statement in connection with the resale of the Series Bonds, excluding in each case any initial Loans requested information contained in the Official Statement relating to DTC or its book-entry only system, information contained therein describing the County’s investment policy, current portfolio holdings, and valuation procedures (as they relate to funds of the District held by Borrowers the County Treasurer-Tax Collector), information provided by the Underwriter concerning the reoffering of the Series Bonds.
(2) a certificate, signed by an official of the County, confirming to be the Underwriter that the Preliminary Official Statement as of its date did not, and the Official Statement as of its date and at the time of Closing did not and does not, to the best of the knowledge of said official, solely with respect to the information contained therein describing the County’s investment policy, current portfolio holdings, and valuation procedures (as they relate to funds of the District held by the County), contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made on therein, in the light of the circumstances under which they were made, not misleading.
(3) a certificate or certificates, signed by appropriate officials of the District or the County or both, confirming to the Underwriter that, as of the date of this Purchase Contract and at the time of Closing, to the best of the knowledge of said official or officials, there is no litigation pending concerning the validity of the Series Bonds, the legal existence of the District or the County, or the entitlement of the officers of the County who have signed the Series Bonds, or the entitlement of the officers of the District who have signed the various certificates and agreements of the District relating to the issuance and sale of Series Bonds, to their respective offices.
(4) a certificate or certificates, signed by an official of the District, confirming to the Underwriter that as of the Closing DateDate all of the representations of the District contained in this Purchase Contract are true, shall be subject and that the District Resolution is in full force and effect and has not been amended, modified or rescinded.
(5) a certificate or certificates, signed by an official of the County, confirming to the receipt by Agent Underwriter that as of each agreementthe Closing Date all of the representations of the County contained in this Purchase Contract are true, document and instrument that the County Resolution is in full force and effect and has not been amended, modified or rescinded.
(6) the opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, Bond Counsel with respect to the issuance of the Series Bonds (“Bond Counsel”), addressed to the District, approving the validity of the Series Bonds, substantially in the form set forth on as Appendix A to the closing checklist prepared Official Statement.
(7) a supplemental opinion of Bond Counsel dated the Closing Date and addressed to the Underwriter, to the effect that the statements contained in the Official Statement in the sections entitled “INTRODUCTION – Tax Matters,” “THE BONDS” (except under the headings “Investment of Bond Proceeds,” “Estimated Sources and Uses of Funds,” “Semiannual Debt Payments” and “Book-Entry Only System”), “LEGAL MATTERS- Tax Matters,” and “APPENDIX A – FORM OF FINAL OPINION OF ▇▇▇▇ COUNSEL,” excluding any material that may be treated as included under such captions by cross-reference, insofar as such statements expressly summarize certain provisions of the District Resolution, the County Resolution [and the Paying Agent or its counselAgreement], each in and the form and substance satisfactory content of the opinion of Bond Counsel are accurate in all material respects.
(8) the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, Disclosure Counsel with respect to Agentthe issuance of the Series Bonds (“Disclosure Counsel”) to the District substantially in the form attached hereto as Appendix [B], and such other closing deliverables reasonably requested by Agent and Lenders, and subject to the satisfaction of the following conditions precedent, each Underwriter dated the date of Closing and addressed to the satisfaction of Agent District and Lenders and their respective counsel in their sole discretion:the Underwriter.
(a9) evidence the duly executed Tax Certificate of the consummation District, dated the date of the transactions (other than the funding of the Loan) contemplated by the Operative Documents includingClosing, without limitation, the funding of any and all investments contemplated by the Operative Documents;in form satisfactory to Bond Counsel.
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d10) the receipt of the initial Borrowing Base CertificateCounty Treasurer-Tax Collector confirming payment by the Underwriter of the Purchase Price of the Series Bonds.
(11) the Continuing Disclosure Certificate of the District, prepared in substantially the form attached to the Preliminary Official Statement.
(12) the letters of [▇▇▇▇▇’▇ Investors Service, Fitch Ratings and Standard & Poor’s Ratings Service] to the effect that such rating agencies have rated the Series Bonds “ ” and “ ”, respectively (or such other equivalent rating as each such rating agency may give), and that each such rating has not been revoked or downgraded.
(13) a certified copy of the adopted District Resolution and the adopted County Resolution.
(14) an executed copy of the Official Statement.
(15) an executed copy of this Purchase Contract.
(16) [an executing copy of the Paying Agent Agreement.]
(b) At or before Closing, and contemporaneously with the acceptance of delivery of the Series Bonds and the payment of the Purchase Price thereof, the Underwriter will provide to the District:
(1) the receipt of the Underwriter, in form satisfactory to the District and the County and signed by an authorized officer of the Underwriter, confirming delivery of the Series Bonds to the Underwriter and the satisfaction of all conditions and terms of this Purchase Contract by the District and the County, respectively, and confirming to the District and the County that as of the Closing Date;
(e) receipt of copies, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of Date all of the foregoing shall be representations of the Underwriter contained in this Purchase Contract are true and correct in all material respects.
(2) the certification of the Underwriter, in form satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory Bond Counsel, regarding the prices at which the Series Bonds have been reoffered to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenderspublic, as applicable, on the Closing Datedescribed in Section 3 hereof.
Appears in 1 contract
Sources: Bond Purchase Contract
Conditions to Closing. A. Buyer's obligation to consummate the Transaction is subject to the following conditions:
1. The obligation Sale Order shall have been entered, and shall not have been stayed, modified or reversed as of each Lender to enter into and become bound the Closing date;
2. Seller shall have complied in all material respects with its obligations under this Agreement Agreement;
3. There shall have been no material adverse change in the business, financial condition or operations of the Mexico City Operations or the condition of the Assets (provided, however, that it is understood and agreed that a material adverse change resulting from any intentional action or omission by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or anyone acting under his direction or control shall not be considered a material adverse change for purposes of this paragraph);
4. Receipt of written approval from BBV of the assignment to and assumption by Buyer of the BBV Loan, without acceleration of any amount due under the BBV Loan or any requirement of the payment of any penalty, fee or similar payment to BBV on account of the BBV Loan or any other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on material modification of the terms of the BBV Loan;
5. As of the Closing Date, there shall be subject no security interests or liens of any nature whatsoever on or affecting any of the Assets other than: (a) Permitted Encumbrances; or (b) any other liens or security interests granted to or obtained by third parties after the date hereof with the knowledge and consent of, or as a result of the actions of, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Aldunate; and
6. Seller shall have executed, delivered and entered into the IT Network Access Agreement or, if the assets comprising the Aerovox IT Network have been sold to Parallax or another purchaser prior to the receipt by Agent Closing, Parallax or such other purchaser of each agreementsaid assets shall have executed, document delivered and instrument set forth on entered into the closing checklist prepared by Agent IT Network Access Agreement. In addition, if the assets comprising the Aerovox IT Network have not been sold as of the Closing Date but Seller has entered into an agreement with Parallax or its counselanother purchaser for the sale of such assets, each Seller shall have demonstrated to the reasonable satisfaction of Buyer that such agreement contains provisions in form and substance satisfactory reasonably acceptable to Agent, Buyer requiring as a condition of such sale that the purchaser thereof assume the IT Network Access Agreement with Buyer and such other closing deliverables reasonably requested by Agent agree to perform Seller's obligations thereunder;
7. Seller shall execute and Lenders, deliver to Buyer an Assignment and Assumption Agreement with respect to the satisfaction Acquired Contracts and the other Assumed Liabilities in a form reasonably acceptable to the parties.
B. Seller's obligation to consummate the Transaction is subject to the following conditions:
1. Entry of the following conditions precedent, each Sale Order;
2. Payment of the balance of the Purchase Price;
3. The Buyer shall have complied in all material respects with its obligations under this Agreement;
4. The Buyer shall have obtained and delivered to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
Seller (a) evidence the written approval from BBV of the consummation assignment to and assumption by Buyer of the transactions (other than BBV Loan, without acceleration of any amount due under the funding BBV Loan or requirement of payment of any amount to BBV on account of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any BBV Loan or otherwise; and all investments contemplated by the Operative Documents;
(b) the payment full and complete release by BBV of Seller from any and all feesliability under or related to the BBV Loan;
5. If required pursuant to the provisions of Section XII hereof, expenses Buyer shall have executed, delivered and other amounts due entered into a Mutual Noncompetition Agreement with the buyer of the "Remaining Assets" of Aerovox (as defined in Section XII hereof), the form and substance of which will be agreed upon in writing by the parties on or before April 26, 2002.
6. Delivery by Buyer for cancellation of the original Promissory Note dated __________ and payable under each Financing Documentby Aerovox, Inc. to ______________ (the "Noteholder") in the original principal amount of $_____________;
7. Buyer shall have caused the Noteholder to (ca) Since December 31, 2011, there has been no development, event, act, condition or occurrence instruct the escrow agent holding of any nature that has occurred that has had or could, either individually or the original stock certificate for ___ shares of capital stock of Aerovox Mexico securing the repayment of the Promissory Note referred to in the aggregate, reasonably be expected preceding paragraph to have a Material Adverse Effectrelease such stock certificate to Seller; and (b) cancel the related pledge agreement;
(d) 8. Buyer shall execute and deliver to Seller an Assignment and Assumption Agreement with respect to the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date;
(e) receipt of copies, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, Acquired Contracts and the terms and conditions of all of other Assumed Liabilities in a form reasonably acceptable to the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretionparties; and
(f) receipt by Agent 9. Buyer shall deliver to Seller the Employer Substitution Agreements in form and substance reasonably acceptable to the parties and customary for transactions of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Datenature.
Appears in 1 contract
Conditions to Closing. The obligation Underwriter has entered into this Bond Purchase Agreement in reliance upon the representations and warranties of each Lender to enter into the County and become bound the District contained herein and the performance by the District of its obligations hereunder, both as of the date hereof and as of the date of Closing. The Underwriter’s obligations under this Bond Purchase Agreement are and shall be subject, at the option of the Underwriter, to the following further conditions at the Closing:
(a) The representations and warranties of the County and the District contained herein shall be true, complete and correct in all material respects at the date hereof and at and as of the Closing, as if made at and as of the Closing, and the statements made in all certificates and other Financing Documents anddocuments delivered to the Underwriter at the Closing pursuant hereto shall be true, if applicable make any initial Loans requested by Borrowers to be made complete and correct in all material respects on the Closing Datedate of the Closing; and the County and the District shall be in compliance with each of the agreements made by each of them, respectively, in this Bond Purchase Agreement;
(b) At the time of the Closing, (i) the Official Statement, the Continuing Disclosure Certificate, this Bond Purchase Agreement, the District Resolution and the County Resolution shall be in full force and effect and shall not have been amended, modified or supplemented except as may have been agreed to in writing by the parties hereto; (ii) all actions under the Education Code which, in the opinion of Bond Counsel, shall be subject necessary in connection with the transactions contemplated hereby, shall have been duly taken and shall be in full force and effect; and (iii) the County and the District shall perform or have performed all of their respective obligations required under or specified in the District Resolution, the County Resolution, the Continuing Disclosure Certificate, or the Official Statement to be performed at or prior to the receipt Closing;
(c) No decision, ruling or finding shall have been entered by Agent any court or governmental authority since the date of each agreementthis Bond Purchase Agreement (and not reversed on appeal or otherwise set aside), document or to the best knowledge of the County or the District, is pending (in which service of process has been completed against the County or the District) or threatened (either in state or federal courts) (A) seeking to restrain or enjoin the execution, sale or delivery of any of the Bonds, (B) in any way contesting or affecting the authority for the execution, sale or delivery of the Bonds or this Bond Purchase Agreement, or (C) in any way contesting the existence or powers of the County or the District, or contesting in any way the completeness or accuracy of the Official Statement;
(d) Between the date hereof and instrument the Closing, the investment quality, the marketability or the market price of the Bonds, or the ability of the Underwriter to enforce contracts for the sale of the Bonds at the initial offering prices set forth in the Official Statement, shall not have been materially adversely affected by reason of any of the following:
(1) legislation enacted by the Congress of the United States, or by the legislature of the State, or introduced in the Congress or recommended for passage by the President of the United States, or a decision rendered by a court of the United States or the State or by the United States Tax Court, or an order, ruling, regulation (final, temporary or proposed) or official statement issued or made:
(i) by or on behalf of the closing checklist prepared United States Treasury Department, or by Agent or its counselon behalf of the Internal Revenue Service or other federal or State authority, which would have the purpose or effect of changing, directly or indirectly, the federal income tax consequences or State tax consequences of interest on obligations of the general character of the Bonds in the hands of the holders thereof; or
(ii) by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction over the subject matter thereof, to the effect that the Bonds, or obligations of the general character of the Bonds, including any and all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended;
(2) the declaration of war or engagement in major military hostilities by the United States or the occurrence of any other national or international emergency or calamity or crisis relating to the effective operation of the government or the financial community in the United States;
(3) the declaration of a general banking moratorium by federal, New York or State authorities having jurisdiction, or the general suspension of trading on any national securities exchange or fixing of minimum or maximum prices for trading or maximum ranges for prices for securities on any national securities exchange, whether by virtue or a determination by that exchange or by order of the Securities and Exchange Commission or any other governmental authority having jurisdiction;
(4) the imposition by the New York Stock Exchange, other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds, or obligations of the general character of the Bonds, or securities generally, or the material increase of any such restrictions now in force;
(5) an order, decree or injunction of any court of competent jurisdiction, or order, filing, regulation or official statement by the Securities and Exchange Commission, or any other governmental agency having jurisdiction over the subject matter thereof, issued or made to the effect that the issuance, offering or sale of obligations of the general character of the Bonds, or the issuance, offering or sale of the Bonds, as contemplated hereby or by the Official Statement, is or would be in violation of the federal securities laws, as amended and then in effect;
(6) the withdrawal or downgrading of any rating of the District’s outstanding indebtedness by a national rating agency; or
(7) any event occurring, or information becoming known which, in the reasonable judgment of the Underwriter, makes untrue in any material adverse respect any statement or information set forth in the Official Statement, or has the effect that the Official Statement contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading;
(e) At or prior to the date of the Closing, the Underwriter shall have received the following documents, in each case dated as of the Closing Date and satisfactory in form and substance to the Underwriter:
(1) An approving opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Newport Beach, California (“Bond Counsel”), substantially in the form attached as Appendix C to the Official Statement, dated the Closing Date and addressed to the County and the District;
(2) A reliance letter from Bond Counsel to the effect that the Underwriter [and the Insurer] may rely upon the approving opinion described in subsection (e)(1) above;
(3) A supplemental opinion of Bond Counsel, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter, to the effect that (i) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the County Resolution is exempt from qualification pursuant to the Trust Indenture Act of 1939, as amended[; provided, however, that no opinion need be expressed regarding the Insurance Policy], and (ii) the statements contained in the Official Statement on the cover and under the captions “INTRODUCTION,” “THE SERIES A BONDS,” “SECURITY AND SOURCE OF PAYMENT FOR THE BONDS” and “TAX MATTERS,” insofar as such statements expressly summarize certain provisions of the Bonds and the Resolutions and the form and content of Bond Counsel’s approving opinion for the Bonds, are accurate in all material respects;
(4) A certificate, signed by an appropriate official of the District, to the effect that (i) such official is authorized to execute this Bond Purchase Agreement and the Continuing Disclosure Certificate, (ii) the representations, agreements and warranties of the District herein are true and correct in all material respects as of the date of Closing, (iii) the District has complied with all the terms of the District Resolution, the County Resolution, the Continuing Disclosure Certificate and this Bond Purchase Agreement to be complied with by the District prior to or concurrently with the Closing, (iv) to the best of such official’s knowledge, no litigation is pending or threatened (either in state or federal courts) (A) seeking to restrain or enjoin the execution, sale or delivery of any of the Bonds, (B) in any way contesting or affecting the authority for the execution, sale or delivery of the Bonds, the Continuing Disclosure Certificate or this Bond Purchase Agreement, or (C) in any way contesting the existence or powers of the District, (v) such official has reviewed the Official Statement and on such basis certifies that the Official Statement does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, (vi) each of the conditions listed in Section 12 of this Bond Purchase Agreement has been satisfied on the date hereof and the District is not aware of any other condition of this Bond Purchase Agreement that has not been satisfied on the date hereof, (vii) the Bonds being delivered on the date of the Closing to the Underwriter under this Bond Purchase Agreement substantially conform to the descriptions thereof contained in the County Resolution and this Bond Purchase Agreement, and (viii) no consent of any party is required for inclusion of the District’s audited financial statements for fiscal year ended June 30, 2008, in the Official Statement;
(5) The opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, as disclosure counsel to the District (“Disclosure Counsel”), addressed to the District and the Underwriter, dated the Closing Date, to the effect that (i) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the County Resolution is exempt from qualification pursuant to the Trust Indenture Act of 1939, as amended[; provided, however, that no opinion need be expressed regarding the Insurance Policy], and (ii) based on such counsel’s participation in conferences with representatives of the Underwriter, the District, the County, the Paying Agent, [the Insurer,] their respective counsel, and others, during which conferences the contents of the Official Statement and related matters were discussed (but with no inquiry made of other attorneys in such counsel’s firm not working directly on the issuance of the Bonds who may have information material to the issue), and in reliance thereon and on the records, documents, certificates and opinions described therein, such counsel advises the District and the Underwriter, as a matter of fact and not opinion, that, during the course of its engagement as disclosure counsel no facts came to the attention of such counsel’s attorneys rendering legal services in connection with such representation which caused such counsel to believe that the Official Statement as of its date (except for any CUSIP numbers, financial, statistical, economic, engineering or demographic data or forecasts, numbers, charts, estimates, projections, assumptions or expressions of opinion, any information about feasibility valuation, appraisals, absorption, real estate or environmental matters, or any information about litigation, [Appendices B, C, E, F, G and H], or any information about [the Insurer, the Insurance Policy,] book- entry or DTC, included or referred to therein, as to which such counsel need express no opinion or view) contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(6) The Continuing Disclosure Certificate signed by an appropriate official of the District substantially in the form appended to the Official Statement;
(7) A certificate signed by appropriate officials of the County to the effect that (i) such officials are authorized to execute and to approve this Bond Purchase Agreement, (ii) the representations, agreements and warranties of the County herein are true and correct in all material respects as of the date of Closing, (iii) the County has complied with all the terms of the County Resolution and this Bond Purchase Agreement to be complied with by the County prior to or concurrently with the Closing and such other closing deliverables reasonably requested by Agent documents are in full force and Lenderseffect, (iv) such official has reviewed the information contained in the Official Statement in Appendix E – “Summary of County of Orange Investment Policies and Practices and Description of Investment Pool” and on such basis certifies that the information contained in the Official Statement in Appendix E – “Summary of County of Orange Investment Policies and Practices and Description of Investment Pool” does not contain any untrue statement of a material fact concerning the County required to be stated therein or omit to state a material fact necessary to make the statements concerning the County therein, in the light of the circumstances in which they were made, not misleading; and (v) the Bonds being delivered on the date of the Closing to the satisfaction Underwriter under this Bond Purchase Agreement substantially conform to the descriptions thereof contained in the County Resolution and this Bond Purchase Agreement;
(8) A tax certificate of the following conditions precedent, each District in form satisfactory to Bond Counsel;
(9) [Evidence satisfactory to the satisfaction Underwriter that the Bonds shall have been rated at “ ” by ▇▇▇▇▇’▇ Investors Service and “ ” by Standard & Poor’s Ratings Services (or such other equivalent rating as such rating agency may give) and that such rating has not been revoked or downgraded;]
(10) The opinion of Agent [▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇ & ▇▇▇▇, Cerritos], California, as counsel to the District (“District Counsel”), addressed to [the Insurer,] the District, the County and Lenders and their respective counsel in their sole discretionthe Underwriter, dated the Closing Date, to the effect that:
(ai) evidence the District is a school district validly existing under the Constitution and the laws of the consummation State of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative DocumentsCalifornia;
(bii) the payment of all feesDistrict Resolution approving and authorizing the execution, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date;
(e) receipt of copies, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution sale and delivery of the cardioCORE Acquisition AgreementBonds and the execution, delivery and performance by the District of this Bond Purchase Agreement and the Continuing Disclosure Certificate was duly adopted at a meeting of the Board of Trustees, which was called and held pursuant to law and with all as public notice required by law and at which a quorum was present and acting at the time of adoption;
(iii) to the best knowledge of such counsel, there is no action, suit, proceeding or investigation at law or in equity before or by any court or governmental agency or body, pending (in which service of process has been completed against the District) or threatened against the District, in any way contesting or affecting the validity of the District Resolution, the Continuing Disclosure Certificate or this Bond Purchase Agreement or contesting the powers of the District to enter into or perform its obligations under such agreements;
(iv) to the best of such firm’s knowledge, the issuance of the Bonds and the execution, delivery and performance of this Bond Purchase Agreement and the Continuing Disclosure Certificate do not and will not conflict with or constitute on the part of the District a breach of, or a default under any agreement, indenture, mortgage, lease or other instrument to which the District is subject or by which it is bound or any existing State law, regulation, court order or consent decree to which the District is subject;
(v) this Bond Purchase Agreement and the Continuing Disclosure Certificate have been duly authorized, executed and delivered by all the District and, assuming due authorization, execution and delivery by the other respective parties thereto, if any, such agreements constitute legal, valid and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Date.binding
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to Closing. The obligation Closing Date shall be the date on which the following conditions precedent shall have been satisfied by the Company or waived by the Administrative Agent as shall be evidenced by a written acknowledgment of the Administrative Agent, which Closing Date occurred on May 26, 2000:
(a) The Administrative Agent shall have received this Agreement, executed and delivered by a duly authorized officer of the Company with a counterpart for each Lender Lender.
(b) The Lenders shall have received a complete and correct copy of the New Credit Facility, in form and substance satisfactory to enter into the Lenders certified as to authenticity by the Company; the New Credit Facility shall be in full force and become bound under this effect and none of the provisions thereof shall have been amended, waived, supplemented, or otherwise modified without the prior written consent of the Administrative Agent.
(c) The forms of (i) the Separation and Distribution Agreement, (ii) the Tax Sharing Agreement, (iii) the Transitional Services Agreement, (iv) the Benefits Agreement and (v) the AutoNation Reimbursement Agreement to be entered into by the Company and AutoNation at the time of the Spin-Off shall be reasonably satisfactory to the Administrative Agent.
(d) There shall not have occurred or become known to the Lenders any event, development or circumstance since December 31, 1999 (the date of the most recent audited financial statements delivered to the Lenders as of the date hereof) that has caused or could reasonably be expected to cause a material adverse condition or material adverse change in or affecting (i) the Spin-Off, (ii) the condition (financial or otherwise), results of operation, assets, liabilities, management, prospects or value of the Company and its subsidiaries, taken as a whole, or that calls into question in any material respect the projections previously supplied to the Lenders or any of the material assumptions on which the projections were prepared or (iii) the validity or enforceability of any of the documents relating to the Loans or the rights and remedies of the Administrative Agent and the Lenders thereunder. The Lenders shall not have become aware after the date hereof of any information or other Financing Documents andmatter affecting the Company or the transactions contemplated hereby that is inconsistent in a material and adverse manner with any such information or other matter disclosed to the Lenders prior to the date hereof.
(e) Each of the representations and warranties made in or pursuant to Section 3 or that are contained in any other Loan Document shall be true and correct in all material respects on and as of the Closing Date (unless stated to relate to a specific earlier date, if applicable make any initial in which case, such representations and warranties shall be true and correct in all material respects as of such earlier date).
(f) No Default or Event of Default shall have occurred and be continuing on the Closing Date or after giving effect to the Initial Loans requested by Borrowers to be made on the Closing Date, shall be subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:.
(ag) evidence of the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any All fees and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date;
(e) receipt of copies, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved paid by Agent, Required Lenders the Company on or Lenders, as applicable, on before the Closing DateDate shall have been paid or provision for payment thereof shall have been made.
(h) The Administrative Agent shall have received an Officer's Certificate from the Company dated the Closing Date in the form of Exhibit H.
Appears in 1 contract
Conditions to Closing. (i) The obligation of the Holder hereunder to consummate the transactions contemplated hereby at the Closing is subject to the satisfaction, at or before the Closing Date, of each Lender to enter into of the following conditions, provided that these conditions are for the Holder’s sole benefit and become bound under this Agreement may be waived by the Holder at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have submitted an additional share listing application for the Common Shares with the Nasdaq Global Market and shall have caused the other Financing Documents and, if applicable make any initial Loans requested by Borrowers Common Shares to be made approved by the Nasdaq Global Market for listing;
(b) The Company shall have delivered to the Holder a certificate of the Company, dated the Closing Date, executed by an officer of the Company certifying in such capacity and on behalf of the Company (i) as to the incumbency and signature of the officer of the Company who executed this Agreement, (ii) as to the adoption of resolutions of the board of directors of the Company which are in full force and effect on the Closing Date, shall be subject to authorizing the receipt by Agent execution and delivery of each agreement, document this Agreement and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a) evidence of the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing DocumentCommon Shares;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence The Company shall have delivered to the Holder a certificate of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt an officer of the initial Borrowing Base CertificateCompany, prepared dated the Closing Date, to the effect that the representations and warranties of the Company in this Agreement that are qualified as to materiality are true and correct as so qualified and all representations and warranties of the Company in this Agreement that are not so qualified are true and correct in all material respects, in each case, on and as of the Closing Date with the same effect as if made on the Closing Date and that the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ed) receipt of copies, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with Subsequent to the execution and delivery of this Agreement and prior to the cardioCORE Acquisition AgreementClosing Date, all as executed and delivered by all parties thereto, and there shall have been no suspension or material limitation of trading in the terms and conditions of all of Common Stock on the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretionNasdaq Global Market; and
(fii) receipt The obligation of the Company hereunder to consummate the transactions contemplated hereby at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Company’s sole benefit and may be waived by Agent of evidence reasonably satisfactory the Company at any time in its sole discretion by providing the Holder with prior written notice thereof:
(b) The Holder shall have delivered, or caused to Agent that be delivered, to the cardioCORE Acquisition has been closed and consummated Company (i) the Outstanding Notes being exchanged pursuant to this Agreement in accordance with the cardioCORE Acquisition written instructions of the Company and (ii) all documentation related to the right, title and interest in and to all of the Outstanding Notes, and whatever documents of conveyance or transfer may be necessary or reasonably desirable to transfer to and confirm in the Company all right, title and interest in and to (free and clear of any mortgage, lien, pledge, charge, security interest, encumbrance, title retention agreement, option, equity or other adverse claim thereto) the Outstanding Notes;
(c) The representations and warranties of the Holder in this Agreement shall be true and other correct in all material related documents executed respects on and delivered in connection as of the Closing Date with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, same effect as applicable, if made on the Closing Date and that the Holder shall have complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.;
Appears in 1 contract
Conditions to Closing. The obligation obligations of the Agents hereunder shall be subject, in the discretion of the Agents, to the condition that all representations and warranties and other statements of the Company herein are, at and as of the SEC Effective Date and each Lender to enter into and become bound under this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, true and correct in all material respects, and the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be subject performed, and the following additional conditions:
(a) The Registration Statement shall have become and shall remain effective under the Act.
(b) If required, the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the Regulations.
(c) All appropriate post-effective amendments to the receipt Prospectus shall have been filed with the Commission and the Commission, on or before the relevant Subsequent Closing Date, either shall have raised no objections or comments thereto, or it shall have declared each of such post-effective amendments to be effective.
(d) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been initiated or threatened by Agent the Commission, and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Agents.
(i) The Company (including its Subsidiaries) shall not have sustained since the date of the latest audited financial statement included in the Prospectus, any loss or interference with its business, fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, and (ii) since the respective dates as of which information is given in the Prospectus there shall not have been any change in the capital stock or long-term debt of the Company as a whole or any change, or any development involving a prospective change, in or affecting the general affairs, prospects, management, financial position, shareholders’ equity or results of operations of the Company (including its Subsidiaries) otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the reasonable judgment of the Agents so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being issued at such Closing Date on the terms and in the manner contemplated by the Prospectus.
(f) On or after the date hereof there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or the American Stock Exchange; (ii) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (iii) any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis if the effect of any such event specified in this clause in the reasonable judgment of the Agents makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being issued at such Closing Date on the terms and in the manner contemplated in the Prospectus; or (iv) such a material adverse change in general economic, political, financial or international conditions affecting financial markets in the United States having a material adverse impact on trading prices of securities in general, as, in the reasonable judgment of the Agents makes it inadvisable to proceed with the sale of the Shares through the Agents.
(g) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the applicable Closing Date, prevent the issuance or sale of the Shares, and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the applicable Closing Date, prevent the issuance or sale of the Shares.
(h) The Agents shall have received a certificate of the Chief Executive Officer and Chief Financial Officer of the Company, dated as of each agreement, document Closing Date to the effect that (as of the SEC Effective Date and instrument as of the applicable Closing Date): (i) the conditions set forth in this Section 6 have been satisfied, (ii) the representations and warranties of the Company set forth in Section 1 hereof are accurate, (iii) all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the closing checklist prepared Company and the Subsidiaries have not sustained any material loss or interference with their respective businesses, whether or not covered by Agent insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included or incorporated by reference in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included or incorporated by reference and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus there has not been any material adverse change or any development involving a prospective material adverse change, whether or not arising from transactions in the ordinary course of business, in or affecting (x) the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company and the Subsidiaries, taken as a whole; (y) the long term debt (if any) and capital stock of the Company or any of its counselSubsidiaries; or (z) the Offering or consummation of any of the other transactions contemplated by this Agreement, each the Registration Statement and the Prospectus.
(i) The Agents shall have received the favorable written opinion of Arent Fox PLLC, legal counsel for the Company, dated as of the applicable Closing Date addressed to the Agents in the form attached hereto as Exhibit A.
(j) As of the SEC Effective Date and as of the applicable Closing Date, the Agents shall have received a “cold comfort” letter from PricewaterhouseCoopers LLP, independent public accountants for the Company, dated, respectively, as of the date of the date of delivery and addressed to the Agents and in form and substance satisfactory to Agentthe Agents and their counsel, confirming that they are independent certified public accountants with respect to the Company and its Subsidiaries within the meaning of the Act and the Regulations, and stating, as of the date of delivery (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to the date of such letter), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter and, with respect to letters issued as of subsequent Closing Dates, confirming the conclusions and findings set forth in such prior letter.
(k) Orange Realty and the Agents shall have entered into the Orange Realty Advisory Agreement.
(l) Orange Advisors and the Agents shall have entered into the Orange Advisors Advisory Agreement.
(m) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms and arrangements between the Company and the Agents.
(n) The Company shall have furnished the Agents and their counsel with such other closing deliverables certificates, opinions or other documents as they may have reasonably requested requested.
(o) If any of the conditions specified in this Section 6 shall not have been fulfilled when and as required by Agent and Lendersthis Agreement, and or if any of the certificates, opinions, written statements or letters furnished to the satisfaction Agents or to their counsel pursuant to this Section 6 shall not be reasonably satisfactory in form and substance to the Agents and their Counsel, all obligations of the following conditions precedentAgents hereunder may be cancelled by the Agents at, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a) evidence of or at any time prior to, the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date;
(e) receipt of copies, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties theretoapplicable Closing, and the terms and conditions of all obligations of the foregoing Agents to act hereunder may be cancelled by the Agents. Notice of such cancellation shall be satisfactory given to Agent and Lenders and their respective counsel the Company in their sole discretion; and
(f) receipt writing, or by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreementtelephone. Each Lender, by delivering its signature page to this Agreement, Any telephonic notice shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Dateconfirmed promptly thereafter in writing.
Appears in 1 contract
Conditions to Closing. The obligation Unless waived by the Managers, the several obligations of each Lender the Underwriters hereunder are subject to enter into the accuracy of the representations and become bound under this warranties on the part of the Company contained herein as of the date of the Underwriting Agreement and the other Financing Documents and, Closing Date (as if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall ) and the performance by the Company of all the obligations to be subject performed by it under this Agreement on or prior to the receipt by Agent of each agreement, document Closing Date and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionconditions:
(a) evidence Subsequent to the Applicable Time and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the consummation possible change, in the rating accorded the Company or any of the transactions (other than the funding securities of the LoanCompany by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) contemplated by of the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;Exchange Act.
(b) No stop order suspending the payment effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission, and there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business, properties or operations of the Company and its consolidated subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus, that, in the judgment of the Managers, is material and adverse and that makes it, in the judgment of the Managers, impracticable or inadvisable to market or deliver the Offered Securities on the terms and in the manner contemplated in the Time of Sale Prospectus; and the Managers shall have received, on the Closing Date, a certificate, dated the Closing Date and signed by either the chief executive officer or chief financial officer of the Company, to the foregoing effect. Such certificate will also provide that the representations and warranties of the Company contained herein are true and correct as of the Closing Date and that the Company has complied with all fees, expenses agreements and other amounts due and payable under each Financing Document;satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date. The officer making such certificate may rely upon the best of his knowledge as to proceedings threatened.
(c) Since December 31The Managers shall have received on the Closing Date an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇, 2011Senior Vice President, there General Counsel and Corporate Secretary of the Company (or another lawyer of the Company reasonably satisfactory to the Underwriters), dated the Closing Date, addressed to the Managers to the effect (as applicable) that:
(i) each of the Company and Kansas Gas and Electric Company (the “Principal Subsidiary”) has been no developmentduly incorporated, eventis validly existing as a corporation in good standing under the laws of the State of Kansas and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification (except where the failure to so qualify would not have a material adverse effect upon the business or financial condition of the Company and its subsidiaries, actas a whole);
(ii) all of the issued shares of capital stock of the Principal Subsidiary have been duly and validly authorized and issued, condition are fully paid and non-assessable, and (except for directors’ qualifying shares and except as otherwise set forth in the Time of Sale Prospectus and the Prospectus) are owned directly and indirectly by the Company, free and clear of all liens, encumbrances, equities or occurrence claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that he believes that both the Managers and he are justified in relying upon such opinions and certificates);
(iii) the Company has an authorized capitalization as set forth in the Time of Sale Prospectus and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iv) each of the indenture dated as of August 1, 1998 (the “Senior Indenture”) between the Company and Deutsche Bank Trust Company Americas, as successor to Bankers Trust Company, as trustee (the “Senior Debt Trustee”), the indenture to be dated as of a date indicated in a relevant prospectus supplement (the “Subordinated Indenture”) between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Subordinated Debt Trustee”), the Mortgage and Deed of Trust, dated July 1, 1939, between the Company and The Bank of New York Mellon Trust Company, N.A., as successor to ▇▇▇▇▇▇ Trust and Savings Bank, as trustee (the “Mortgage Bond Trustee”), as amended and supplemented by forty-three supplemental indentures supplemental thereto, in addition to the forty-second supplemental (reopening) indenture (such Mortgage and Deed of Trust, as heretofore amended and supplemented, the “Mortgage”) and as to be amended and supplemented by the supplemental indenture, to be dated as of a date indicated in a relevant prospectus supplement (the “Supplemental Indenture”) (the Mortgage, as so amended and supplemented by such supplemental indentures, the “Amended Mortgage”), has been duly authorized, executed and delivered by the Company;
(v) assuming the due authorization, execution and delivery by the other parties thereto, the Amended Mortgage constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability;
(vi) the Amended Mortgage has been duly recorded and filed in each place in which such recording or filing is required to protect and preserve the lien of the Amended Mortgage, and all taxes and recording or filing fees required to be paid in connection with the execution, recording or filing of the Amended Mortgage have been duly paid;
(vii) the Company has good and sufficient title to, or a satisfactory easement in, all the real property, and has good and sufficient title to all the personal property described in the Amended Mortgage as owned by it and subject to the lien of the Amended Mortgage, except any which may have been released from the lien thereof pursuant to the provisions thereof, subject only to (a) minor leases and liens of judgments not prior to the lien of the Amended Mortgage, which, in such counsel’s opinion, do not interfere with the Company’s business, (b) minor defects, irregularities and deficiencies in titles of properties and rights-of-way which, in such counsel’s opinion, do not materially impair the use of such property and rights of- way for the purposes for which they are held by the Company, and (c) other permitted liens as defined in the Amended Mortgage; subject to the qualifications set forth in this Section 4(c)(vii), the Amended Mortgage constitutes a valid, direct first mortgage lien upon said properties and upon all franchises owned by the Company, which properties and franchises include all the physical properties and franchises of the Company (other than classes of property expressly excepted in the Amended Mortgage); all physical properties and franchises (other than classes of property expressly excepted in the Amended Mortgage as aforesaid) thereafter acquired by the Company will, upon such acquisition, become subject to the lien thereof, subject, however, to liens permitted thereby and to any liens existing or placed upon such properties at the time of the acquisition thereof by the Company and except as described in the Time of Sale Prospectus and the Prospectus; and the descriptions of all such properties and assets contained in the granting clauses of the Amended Mortgage are correct and adequate for the purposes of the Amended Mortgage;
(viii) the Warrant Agreement, if any, has been duly authorized, executed and delivered by the Company;
(ix) the Unit Agreement, if any, has been duly authorized, executed and delivered by the Company;
(x) the Offered Securities have been duly authorized, executed, and delivered by the Company;
(xi) when the Offered Securities have been duly executed and authenticated in accordance with the provisions of the relevant Senior Indenture, Subordinated Indenture or Amended Mortgage, the Offered Securities will be valid and binding obligations of the Company, enforceable against them in accordance with their terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and will be entitled to the benefits of the relevant Senior Indenture, Subordinated Indenture or Amended Mortgage and to the lien of the Amended Mortgage;
(xii) this Agreement has been duly authorized, executed and delivered by the Company;
(xiii) except as rights to indemnity and contribution under this Agreement may be limited under applicable law, the execution and delivery by the Company of, and the performance by the Company of its obligations under this Agreement, the Senior Indenture, the Subordinated Indenture, the Amended Mortgage, the Offered Securities, the Warrant Agreement and the Unit Agreement will not contravene any provision of the laws of the State of Kansas or any federal law of the United States of America (including laws relating specifically to electric utility companies and the electric utility industry) that in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the topic contemplated by this Agreement, or, to the best knowledge of such counsel, of any nature other state or jurisdiction of the United States, or the articles of incorporation or by-laws (or similar organizational document) of the Company or, to the best knowledge of such counsel, any material agreement or other material instrument binding upon the Company, the Senior Indenture, the Subordinated Indenture, the Amended Mortgage, the Offered Securities, the Warrant Agreement and the Unit Agreement, provided that has occurred such counsel need not express an opinion as to federal or state securities or Blue Sky laws, and no consent, approval or authorization of any governmental body or agency under the laws of the State of Kansas or any federal law of the United States of America (except with respect to consents, approvals and authorizations relating specifically to public utility companies or the utilities industry, as to which such counsel is not called upon to express any opinion) that has had in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the topic contemplated by this Agreement, or, to the best knowledge of such counsel, of any other state or couldjurisdiction of the United States of America or of any foreign jurisdiction is required for the performance by the Company of its obligations under this Agreement, either the Senior Indenture, the Subordinated Indenture, the Amended Mortgage, the Offered Securities, the Warrant Agreement, and the Unit Agreement provided that such counsel need not express an opinion as to federal or state securities or Blue Sky laws;
(xiv) each of the Company and the Principal Subsidiary possesses valid franchises, certificates of convenience and authority, licenses and permits authorizing it to carry on the electric utility business in which it is engaged, except in the cases that the failure to possess such franchises, certificates, licenses or permits, individually or in the aggregate, would not be reasonably expected to have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole, and neither the Company nor the Principal Subsidiary has received any notice of proceedings relating to the revocation or modification of any such franchise, certificate of convenience and authority, license or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effectmaterial adverse effect, except as set forth in or contemplated in the Time of Sale Prospectus and the Prospectus;
(dxv) the receipt statements (A) in Item 3 of the initial Borrowing Base CertificateCompany’s most recent Annual Report on Form 10-K incorporated by reference in the Time of Sale Prospectus and the Prospectus, prepared as (B) in Part II, Item 1 under the caption “Legal Proceedings” of the Closing DateCompany’s most recent Quarterly Report on Form 10-Q incorporated by reference in the Time of Sale Prospectus and (C) in the Registration Statement in Item 15, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings;
(exvi) receipt such counsel does not know of copiesany legal or governmental proceeding pending or threatened (including, certified as truewithout limitation, complete and correct by proceeding pending before the Borrowing Representative, State Corporation Commission of the final cardioCORE Acquisition AgreementState of Kansas (“KCC”) or Federal Energy Regulatory Commission (“FERC”)) to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject which is required to be described in the Registration Statement, complete the Time of Sale Prospectus or the Prospectus and is not so described, or of any contract, other document, public utility law or regulation which is required to be described in the Registration Statement, the Time of Sale Prospectus or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required;
(xvii) the securities into which the Offered Securities are convertible, initially reserved for issuance upon conversion of the Offered Company Securities (the “Underlying Securities”), have been duly authorized and reserved for issuance;
(xviii) when the Underlying Securities are issued upon conversion of the Offered Company Securities in accordance with all schedules the terms of the Offered Company Securities, such Underlying Securities will be validly issued, fully paid and exhibits theretonon-assessable and will not be subject to any preemptive or other right to subscribe for or purchase such Underlying Securities;
(xix) the Company has complied with K.S.A. 9 66- 125 with respect to the issuance of the Offered Securities. No additional consent, and all material related documents executed and delivered approval, authorization, filing with or order of (a) FERC under the Federal Power Act, (b) the KCC or (c) to the knowledge of the Company, any court or governmental agency or body is required in connection with the execution transactions contemplated herein, except such as have been obtained under the Securities Act and delivery the Trust Indenture Act of 1939 (the “Trust Indenture Act”) and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the cardioCORE Acquisition Agreement, all as executed Securities by the Underwriters in the manner contemplated herein and delivered by all parties thereto, and in the terms and conditions Time of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretionSale Prospectus; and
(fxx) receipt by Agent The statements in the prospectus supplement contained in the Time of evidence reasonably satisfactory Sale Prospectus and the Prospectus under “Description of First Mortgage Bonds,” “Description of Senior Notes” or “Description of Subordinated Indebtedness” and in the Base Prospectus under the caption “Description of Debt Securities” as they relate to Agent the Amended Mortgage, the Senior Debt Indenture, the Subordinated Debt Indenture and the Offered Securities, insofar as such statements constitute a summary of the legal matters or documents referred to therein, fairly present the information called for with respect to such legal matters and documents. Such counsel shall also state that nothing has come to his attention that causes him to believe (1) that the cardioCORE Acquisition has been closed and consummated in accordance with Registration Statement or any amendments thereto, on the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with date on which it became effective or the execution and delivery date of filing of the cardioCORE Acquisition Agreement. Each Lendermost recent subsequent Annual Report on Form 10-K, by delivering its signature page contained an untrue statement of a material fact or omitted to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument state a material fact required to be approved by Agent, Required Lenders stated therein or Lenders, as applicable, on the Closing Date.nece
Appears in 1 contract
Conditions to Closing. The obligation effectiveness of each Lender to enter into and become bound under this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be is subject to the receipt by satisfaction of the following conditions: The Agent shall have received the following, each dated as of each agreementthe Closing Date (unless otherwise indicated), document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to the Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a) evidence receipt of the consummation an executed counterpart of the transactions this Agreement;
(other than the funding b) if requested by any Lender, receipt of the Loan) contemplated by the Operative Documents a duly executed Note for such Lender (including, without limitation, the funding of any and all investments contemplated Swingline Note if requested by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing DocumentSwingline Lender);
(c) Since receipt of opinions of (i) ▇▇▇▇▇▇ Law Firm, P.A., counsel for the Borrower and (ii) the General Counsel or an Assistant General Counsel to the Borrower, substantially in the forms of Exhibit B-1 and B-2, hereto, respectively, and covering such additional matters relating to the transactions contemplated hereby as the Lenders may reasonably request;
(d) receipt of a certificate signed by a principal financial or accounting officer of the Borrower, to the effect that (i) no Default or Event of Default has occurred and is continuing as 53 of the Closing Date, (ii) since December 31, 20112014, there has been no developmentchange or changes in the business, eventassets, actliabilities, operations, condition (financial or occurrence otherwise) or prospects of any nature that has occurred that has had the Borrower and its Subsidiaries, taken as a whole or couldin the facts and information regarding such entities which alone, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect;
Effect and (diii) the receipt representations and warranties of the initial Borrowing Base Certificate, prepared Borrower contained in Article IV hereof are true in all material respects as of the Closing Datedate hereof;
(e) receipt of copiesall documents which the Agent and the Lenders may reasonably request relating to the existence of the Borrower, certified as truethe corporate authority for and the validity of this Agreement and the other Loan Documents and any other matters relevant hereto, complete all in form and correct substance satisfactory to the Agent and the Lenders, including without limitation a certificate of incumbency of the Borrower, signed by the Borrowing Representative, Secretary or an Assistant Secretary of the final cardioCORE Acquisition Borrower, certifying as to the names, true signatures and incumbency of the officer or officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party and certified copies of the following items: (i) the Borrower’s Restated Articles of Incorporation, (ii) the Borrower’s By-laws, (iii) a certificate of the Secretary of State of the State of South Carolina as to the existence of the Borrower as a South Carolina corporation, (iv) a certificate of the Secretary of State of the State of North Carolina as to the good standing of the Borrower in North Carolina, and (v) the action taken by the Board of Directors of the Borrower authorizing the Borrower’s execution, delivery and performance of this Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, Notes and the terms and conditions of all of other Loan Documents to which the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; andBorrower is a party;
(f) receipt by the Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed Borrower shall have irrevocably terminated all commitments, or otherwise amended and consummated restated any such commitment in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered its entirety in connection with herewith, which shall have been deemed issued pursuant to the execution terms hereof and delivery of those commitments under the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to Existing Credit Agreement that constitute Commitments under this Agreement, and indefeasibly paid in full all amounts due under the Existing Credit Agreement (or such amounts shall be deemed outstanding under this Agreement pursuant to have acknowledged Section 7.14);
(g) receipt of, by the Agent (for its own account and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or the account of the Lenders, as applicable) of all fees required to be received in connection with this Agreement on or before such Closing Date;
(h) receipt and satisfactory review by the Agent and the Lenders of such financial information regarding the Borrower and its subsidiaries as may be reasonably requested;
(i) receipt of such other documents and information as the Agent and the Lenders may reasonably request (including, without limitation, documents and information in order to comply with requirements of the Patriot Act, applicable “know your customer” and anti-money laundering rules and regulations);
(j) receipt by the Agent of a Notice of Account Designation specifying the account or accounts to which the proceeds of any Loans made on or after the Closing DateDate are to be disbursed; and
(k) receipt by the Agent of evidence satisfactory to the Agent that the Borrower has received all regulatory approvals required in connection with obtaining the refinancing provided for in this Agreement.
Appears in 1 contract
Sources: Five Year Credit Agreement (South Carolina Electric & Gas Co)
Conditions to Closing. The obligation (a) At or before Closing, and contemporaneously with the acceptance of each Lender delivery of the Bonds, the District will provide to enter into and become bound under this Agreement the Underwriter:
(1) a certificate, signed by an official of the District, confirming to the Underwriter that the Preliminary Official Statement as of its date did not, and the other Financing Documents andOfficial Statement as of its date and at the time of Closing did not and does not, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be subject to the receipt by Agent best of the knowledge of said official, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading, and that there has been no material adverse change in the financial condition or affairs of the District which would make it unreasonable for the purchaser of the Bonds to rely upon the Official Statement in connection with the resale of the Bonds; excluding in each agreement, document and instrument set forth on the closing checklist prepared by Agent case any information contained therein relating to DTC or its counselbook-entry only system; CUSIP numbers of the Bonds; information contained therein describing the investment policy of the City and County of San Francisco, each its current portfolio holdings, and valuation procedures (as they relate to funds of the District held by the Treasurer); and information provided by the Underwriter regarding the prices or yields at which the Bonds were re-offered to the public, as to all of which the District expresses no view.
(2) a certificate, signed by an official of the City and County of San Francisco, confirming to the Underwriter that the Preliminary Official Statement as of its date did not, and the Official Statement as of its date and at the time of Closing did not and does not, to the best of the knowledge of said official, solely with respect to the information contained therein describing the City and County of San Francisco’s investment policy, current portfolio holdings, and valuation procedures (as they relate to funds of the District held by the Treasurer), contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(3) a certificate signed by an appropriate official of the District in form and substance satisfactory to Agentthe Underwriter to the effect that (i) the official signing this Purchase Contract on behalf of the District is authorized to do so (ii) the representations, agreements and warranties of the District herein are true and correct in all material respects as of the date of Closing, (iii) the District has complied with all the terms of the District Resolution, the Paying Agent Agreement and this Purchase Contract to be complied with by the District prior to or concurrently with the Closing and such documents are in full force and effect as of the Closing Date, and such other closing deliverables reasonably requested by Agent and Lenders, and (iv) the Bonds being delivered on the Closing Date to the satisfaction Underwriter under this Purchase Contract conform to the descriptions thereof contained in the Paying Agent Agreement in all material respects.
(4) a certificate, signed by an official of the following conditions precedent, each District (or an opinion of counsel to the satisfaction District), confirming to the Underwriter that, as of Agent the date of this Purchase Contract and Lenders at the time of Closing, there is no litigation pending, with service of process completed, or, to the best of the knowledge of said person, threatened, concerning the validity of the Bonds, the levy of taxes to repay the Bonds or the application of tax proceeds to that purpose, the corporate existence of the District, or the entitlement of the officers of the District who have signed the Bonds and the various certificates and agreements of the District relating to the issuance and sale of Bonds, to their respective counsel in their sole discretion:offices.
(a5) evidence the opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, Bond Counsel with respect to the issuance of the consummation Bonds (“Bond Counsel”), addressed to the District, approving the validity of the transactions Bonds, substantially in the form set forth as Appendix D to the Official Statement.
(other than 6) a supplemental opinion of Bond Counsel in a form acceptable to the funding Underwriter, substantially in the form set forth as Appendix B herein.
(7) an opinion of [Underwriter’s Counsel], counsel for the Underwriter (“Underwriter’s Counsel”), dated the date of Closing and addressed to the Underwriter, satisfactory in form and substance to the Underwriter.
(8) the duly executed Tax Certificate of the Loan) contemplated by District, dated the Operative Documents includingdate of Closing, without limitation, the funding of any and all investments contemplated by the Operative Documents;in form satisfactory to Bond Counsel.
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d9) the receipt of the initial Borrowing Base CertificateDistrict or its agent confirming payment by the Underwriter of the Purchase Price of the Bonds.
(10) the duly executed Continuing Disclosure Certificate of the District, prepared in substantially the form attached as Appendix E to the Preliminary Official Statement.
(11) a certified copy of the adopted District Resolution.
(12) an executed copy of the Paying Agent Agreement.
(13) a certificate signed by an Authorized District Representative evidencing his or her determination with respect to the Preliminary Official Statement in accordance with the Rule.
(14) an executed copy of this Purchase Contract.
(15) an executed copy of the Official Statement.
(16) the letter of ▇▇▇▇▇’▇ Investors Service (“Moody’s”) and S&P Global Ratings (“S&P”), to the effect that such rating agencies have rated the Bonds “[ ]” and “[ ],” respectively (or such other equivalent rating as such rating agency may give), and that such ratings have not been revoked or downgraded.
(17) a certificate signed by a District official setting forth a projection evidencing that tax rates with respect to the Bonds are projected not to exceed $60.00 per $100,000 of assessed value during the term of the Bonds, and a certificate signed by an official of the City and County of San Francisco confirming that the District is in compliance with applicable bonding capacity limitations.
(18) such additional opinions, certificates, and documents as Bond Counsel, or the Underwriter or Underwriter’s Counsel may reasonably request to evidence the truth and correctness, as of the Closing Date;, of the representations of the parties contained herein, and of the District contained in the Official Statement, and the due performance or satisfaction by the parties at or prior to such time of all agreements then to be performed and all conditions then to be satisfied.
(eb) At or before Closing, and contemporaneously with the acceptance of delivery of the Bonds and the payment of the Purchase Price thereof, the Underwriter will provide to the District:
(1) the receipt of copiesthe Underwriter, certified in form satisfactory to the District and signed by an authorized officer of the Underwriter, confirming delivery of the Bonds to the Underwriter and the satisfaction or waiver of all conditions and terms of this Purchase Contract by the District, and confirming to the District that as of the Closing Date all of the representations of the Underwriter contained in this Purchase Contract are true, complete and correct by in all material respects.
(2) the Borrowing Representative, certification of the final cardioCORE Acquisition AgreementUnderwriter, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be form satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory Bond Counsel, regarding the prices at which the Bonds have been reoffered to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenderspublic, as applicable, on the Closing Datedescribed in Section 3 hereof.
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to Closing. 1. The obligation of each Lender Investor to enter into purchase and become bound under this Agreement and pay for the other Financing Documents and, if applicable make any initial Loans requested Shares being purchased by Borrowers to be made it on the Closing DateDate is, shall be at its option, subject to the receipt by Agent of each agreementsatisfaction, document and instrument set forth on the closing checklist prepared by Agent or its counselbefore such date, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionconditions:
(a) evidence The representations and warranties of the consummation Company contained in Section B hereof shall be true and correct on and as of the transactions (other than Closing Date with the funding same effect as though such representations and warranties had been made on and as of such date, and the Loan) contemplated by Company shall have certified to such effect to the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative DocumentsInvestors;
(b) The Investors shall have received from Shearman & Sterling, counsel for the payment Company, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Manager, Legal Affairs of all feesthe Company, expenses legal opinions dated the Closing Date in substantially the form of Exhibit C-1 and other amounts due and payable under each Financing DocumentC-2 hereto, respectively;
(c) Since December 31The Company shall have performed and complied with all agreements and conditions contained herein required to be performed or complied with by it prior to or at the Closing Date, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in and the aggregate, reasonably be expected Company shall have certified to have a Material Adverse Effectsuch effect to the Investors;
(d) Certified copies of (A) the receipt resolutions of the initial Borrowing Base Certificate, prepared as Board of Directors of the Closing DateCompany approving this Agreement and the Registration Rights Agreement and the transactions contemplated hereby and thereby, (B) all documents evidencing other necessary corporate action and government approvals, if any with respect to this Agreement, (C) the certificate of incorporation and by-laws of the Company, and (D) a good standing certificate with respect to the Company from the Secretary of State (or similar official) of the State of Washington;
(e) receipt of copies, certified as true, complete and correct by the Borrowing Representative, A certificate of the final cardioCORE Acquisition AgreementSecretary or an Assistant Secretary of the Company certifying the names and true signatures of its officers authorized to sign this Agreement and the Registration Rights Agreement and the other documents to be delivered by it hereunder;
(f) On the Closing Date, complete with all schedules and exhibits thereto, and all material related documents the Company shall have executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Registration Rights Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(fg) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery The Company shall have received Subscriptions from Investors totalling not less than $9,500,000.
2. The obligation of the cardioCORE Acquisition Agreement. Each Lender, Company to issue and sell the Shares being issued and sold by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, it on the Closing DateDate is, at its option, subject to the satisfaction, on or before such date, of the following conditions:
(a) The representations and warranties of the Investors contained in Section C hereof shall be true and correct on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of such date; and
(b) The Company shall have received Subscriptions from Investors totalling not less than $9,500,000.
Appears in 1 contract
Conditions to Closing. The obligation of each Lender to enter into make the Advance is subject to the satisfaction of each of the following conditions:
(a) This Agreement, the Debenture and become bound under each other Margin Loan Document shall have been duly authorized, executed and delivered to Lender by the other parties thereto, shall be in full force and effect and no Default or Event of Default shall exist hereunder or thereunder.
(b) Lender shall have received each of the following in form and substance reasonably satisfactory to Lender:
(i) closing certificates including (1) a certificate from a Responsible Officer of Borrower to the effect that (A) all representations and warranties of Borrower contained in this Agreement and the other Financing Margin Loan Documents andare true, if applicable make correct and complete in all material respects (except to the extent any initial Loans requested such representation and warranty is qualified by Borrowers materiality or reference to be made on the Closing DateMaterial Adverse Effect, in which case, such representation and warranty shall be subject true, correct and complete in all respects); (B) Borrower is not in violation of any of the covenants contained in this Agreement and the other Margin Loan Documents; (C) after giving effect to the receipt by Agent Transactions, no Default or Event of each agreement, document Default has occurred and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction is continuing; (D) as of the following conditions precedentdate hereof, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a) evidence of the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that event has occurred that has had or couldcondition arisen, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect; and (E) Borrower has satisfied each of the conditions set forth in this Section 3.01; (2) a certificate of a Responsible Officer of Borrower certifying as to the incumbency and genuineness of the signature of each officer of Borrower executing Margin Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles or certificate of incorporation or formation (or equivalent), as applicable, of Borrower and all amendments thereto and the statutory registers of Borrower, each, certified as of a recent date by a Responsible Officer of Borrower , (B) the bylaws or other governing document of Borrower as in effect on the Closing Date, (C) resolutions duly adopted by the board of directors (or other governing body) of Borrower authorizing and approving the Transactions and the execution, delivery and performance of this Agreement and the other Margin Loan Documents to which it is a party, and (D) each certificate required to be delivered pursuant to clause (3) of this sentence; and (3) a certificate as of a recent date of the good standing of Borrower under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(ii) (A) Hong Kong law opinion and New York law opinion of Wi▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Ro▇▇▇▇, counsel to Borrower; (B) Cayman Islands law opinion of Walkers, counsel to the Lender; and (C) English law opinion of Cl▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Ha▇▇▇▇▇▇ ▇LP, counsel to the Lender, each addressed to Lender with respect to Borrower, the Margin Loan Documents and such other matters as Lender shall request (which such opinions shall expressly permit reliance by permitted successors and assigns of Lender);
(iii) a certificate of Borrower and certified as accurate by a Responsible Officer of Borrower, that after giving effect to the Transactions, Borrower is Solvent;
(iv) FRB Form U-1 completed to satisfaction of Lender and duly executed by Borrower;
(v) a certificate of a Responsible Officer of Borrower certifying the audited financial statements of the Borrower and its Subsidiaries for the year ended December 31, 2017 to be attached to be a true, correct and complete copy thereof (the “Borrower Financial Statements”);
(vi) evidence that Borrower has duly appointed (A) a process agent in New York City to accept such service of any and all writs, process and summonses for any action arising out of this Agreement or any other Margin Loan Document which are governed by New York law; and (B) a process agent in England to accept such service of any and all writs, process and summonses for any action arising out of this Agreement or any other Margin Loan Document which are governed by English law; and
(viii) a Waiver Letter.
(c) There shall be sufficient Perfected Collateral in the Collateral Account such that, after giving effect to the Advance, the LTV Ratio as of the Closing Date shall be equal to or less than the Initial LTV Ratio.
(d) The Collateral Account shall have been established by Borrower, and the receipt of Initial Collateral Shares shall have been credited to the initial Borrowing Base CertificateCollateral Account by book-entry transfer through DTC, prepared as depositary and shall be Perfected Collateral.
(e) All documented fees and expenses required to be paid under the Margin Loan Documents on or before the Closing Date, including counsel fees invoiced prior to the Closing Date, shall have been paid.
(f) The representations and warranties contained in this Agreement and the other Margin Loan Documents shall be true and correct in all material respects, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects, on and as of the Closing Date;Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in all material respects as of such earlier date, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects as of such earlier date).
(eg) receipt No Default, Event of copiesDefault, certified as true, complete Mandatory Prepayment Event or Potential Adjustment Event shall have occurred and correct by be continuing or would result from the Borrowing Representative, Advance or from the application of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Dateproceeds therefrom.
Appears in 1 contract
Conditions to Closing. The obligation several obligations of each Lender the Underwriters to enter into purchase and become bound pay for the Debt Securities will be subject to the following conditions:
(a) If filing of the Final Prospectus is required pursuant to Rule 424(b) or Rule 434 of the Securities Act Regulations, the Final Prospectus shall have been timely filed with the Commission in accordance with Rule 424(b) or Rule 434 of the Securities Act Regulations; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under this Agreement and the other Financing Documents andSecurities Act or proceedings therefor initiated or threatened by the Commission.
(b) The Underwriters shall have received, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be subject a certificate signed by the Chairman of the Board, the President, a Vice Chairman of the Board or any Executive or Senior Vice President and the principal financial or accounting officer of the Corporation, dated the Closing Date, to the receipt by Agent effect that the signers of each agreementsuch certificate have carefully examined the Registration Statement, document the Final Prospectus and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form this Agreement and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionthat:
(ai) evidence the representations and warranties of the consummation Corporation in this Agreement are true and correct in all material respects on and as of the transactions (other than Closing Date with the funding of same effect as if made on the Loan) contemplated by Closing Date and the Operative Documents including, without limitation, Corporation has complied in all material respects with all the funding of any agreements and satisfied in all investments contemplated by material respects all the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition conditions on its part to be performed or occurrence of any nature that has occurred that has had satisfied at or could, either individually or in the aggregate, reasonably be expected prior to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date;
(eii) receipt no stop order suspending the effectiveness of copiesthe Registration Statement has been issued and no proceedings for that purpose have been instituted or, certified to the Corporation's knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the financial condition, business or results of operations of the Corporation and its subsidiaries taken as truea whole, complete whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(c) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and correct the Final Prospectus (exclusive of any amendment thereof), there shall not have been any change, or any development involving a prospective change, in or affecting the business or properties of the Corporation and its subsidiaries the effect of which is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Debt Securities as contemplated by the Borrowing RepresentativeRegistration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment thereof).
(d) The Underwriters shall have received an opinion, dated the Closing Date, of the final cardioCORE Acquisition AgreementCorporation's General Counsel, complete with all schedules substantially in the form attached hereto as Exhibit A. In rendering such opinion, such counsel may state that he is passing only on matters of New York and exhibits theretoUnited States Federal law. Insofar as such opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Corporation and its subsidiaries and certificates of public officials.
(e) The Underwriters shall have received an opinion, dated the Closing Date, of counsel to the Underwriters as to such matters as the Underwriters shall reasonably request. In rendering such opinion, counsel may rely upon an opinion or opinions, each dated the Closing Date, of other counsel retained by them or the Corporation as to laws of any jurisdiction other than the United States or the State of New York, provided that (i) such reliance is expressly authorized by each opinion so relied upon and a copy of each such opinion is delivered to the Underwriters, and all material related (ii) counsel shall state in their opinion that they believe that they and the Underwriters are justified in relying thereon. Insofar as such opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Corporation and its subsidiaries and certificates of public officials.
(f) The Debt Securities shall have received a rating from each of two "nationally recognized statistical rating agencies" (as that term is defined by the Commission for the purposes of Rule 436(g)(2) under the Securities Act), each such rating to be not less than the rating set forth in the Final Prospectus.
(g) At the date hereof and at the Closing Date, the Underwriters shall have received letters, dated respectively as of the date hereof and as of the Closing Date, in form and substance reasonably satisfactory to them, from the Corporation's independent public accountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information, including the financial information contained or incorporated by reference in the Registration Statement as identified by the Representative. Such letters shall also confirm that, with respect to the Corporation, they are independent accountants within the meaning of the published rules and regulations of the American Institute of Certified Public Accountants.
(h) Prior to the Closing Date, the Corporation shall have furnished to the Underwriters such further information, certificates and documents executed and delivered as the Underwriters may reasonably request in connection with the execution and delivery offering of the cardioCORE Acquisition AgreementDebt Securities.
(i) No downgrading in the rating accorded the Debt Securities or any other debt securities of the Corporation by any "nationally recognized statistical rating organization" shall have occurred, all as executed and delivered by all parties theretoor any public announcement that any such organization has under surveillance or review their ratings of the Debt Securities or any other debt securities of the Corporation (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating), and if, in any such case, the terms and conditions of all effect thereof in the reasonable judgment of the foregoing shall be satisfactory Underwriters makes it impracticable or inadvisable to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance proceed with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery purchase of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing DateDebt Securities.
Appears in 1 contract
Conditions to Closing. The obligation several obligations of each Lender the Underwriters to enter into purchase and become bound pay for the Capital Securities will be subject to the following conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Rule 430A of the Securities Act Regulations; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under this Agreement the Securities Act or proceedings therefor initiated or threatened by the Commission; and any request of the other Financing Documents andCommission for inclusion of additional information in the Registration Statement or the Prospectus shall have been complied with and there shall not have come to the attention of the Underwriters any fact that would cause the Underwriters to believe that the Prospectus, if applicable make any initial Loans requested by Borrowers at the time it was required to be made delivered to a purchaser of the Capital Securities, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements made, in light of the circumstances existing at such time, not misleading.
(b) The Underwriters shall have received, on the Closing Date, shall be subject a certificate signed by the Chairman of the Board, the President, a Vice Chairman of the Board or any Executive or Senior Vice President and the principal financial or accounting officer of the Corporation, dated the Closing Date, to the receipt by Agent effect that the signers of each agreement, document such certificate have carefully examined the Registration Statement and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form this Agreement and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionthat:
(ai) evidence the representations and warranties of the consummation Corporation in this Agreement are true and correct in all material respects on and as of the transactions Closing Date with the same effect as if made on the Closing Date and the Corporation has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(other than ii) since the funding date of the Loan) contemplated by most recent financial statements included in the Operative Documents including, without limitation, the funding Registration Statement (exclusive of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011supplement thereto), there has been no developmentmaterial adverse change in the condition (financial or other), eventearnings, actbusiness or properties of the Corporation and its subsidiaries taken as a whole, condition whether or occurrence not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement (exclusive of any nature that has occurred that has had or couldsupplement thereto).
(c) Subsequent to the date hereof or, either individually or if earlier, the dates as of which information is given in the aggregateRegistration Statement (exclusive of any amendment thereof), reasonably be expected there shall not have been any change, or any development involving a prospective change, in or affecting the business or properties of the Corporation and its subsidiaries the effect of which is, in the judgment of the Underwriters, so material and adverse as to have a Material Adverse Effect;make it impractical or inadvisable to proceed with the offering or the delivery of the Capital Securities as contemplated by the Registration Statement (exclusive of any amendment thereof).
(d) the receipt of the initial Borrowing Base CertificateThe Underwriters shall have received an opinion, prepared as of dated the Closing Date;, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, substantially in the form attached hereto as Exhibit A. In rendering such opinion, counsel may state that they are passing only on matters of New York and United States Federal law. In rendering such opinion, counsel may rely upon an opinion or opinions, each dated the Closing Date, of other counsel retained by them or the Corporation as to laws of any jurisdiction other than the United States or the State of New York, provided that (A) such reliance is expressly authorized by each opinion so relied upon and a copy of each such opinion is delivered to the Underwriters, and (B) counsel shall state in their opinion that they and the Underwriters are justified in relying thereon. Insofar as such opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Corporation, its subsidiaries and the Trust and certificates of public officials.
(e) receipt The Underwriters shall have received an opinion, dated the Closing Date, of copies▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, certified General Counsel to the Corporation, substantially in the form attached hereto as trueExhibit B. In rendering such opinion, complete such counsel may state that he is passing only on matters of New York and correct United States Federal law. Insofar as such opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Corporation, its subsidiaries and the Trust, and certificates of public officials.
(f) The Underwriters shall have received an opinion, dated the Closing Date, of White & Case, counsel to the Trust Company and Trust Delaware, substantially in the form attached hereto as Exhibit C.
(g) The Underwriters shall have received an opinion, dated the Closing Date, of Cravath, Swaine & ▇▇▇▇▇, counsel to the Underwriters as to such matters as the Underwriters shall reasonably request. In rendering such opinion, counsel may rely upon an opinion or opinions, each dated the Closing Date, of other counsel retained by them or the Corporation as to laws of any jurisdiction other than the United States or the State of New York, provided that (A) such reliance is expressly authorized by each opinion so relied upon and a copy of each such opinion is delivered to the Underwriters, and (B) counsel shall state in their opinion that they believe that they and the Underwriters are justified in relying thereon. Insofar as such opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Corporation, its subsidiaries and the Trust and certificates of public officials.
(h) The Underwriters shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel to the Corporation and the Trust, substantially to the effect and in the form attached hereto as Exhibit D.
(i) The Capital Securities shall have received a rating from each of ▇▇▇▇▇'▇ Investor Service, Inc. and Standard & Poor's Rating Services, each such rating to be not less than the rating set forth in the Registration Statement.
(j) The Underwriters shall have received on the Closing Date a letter, dated the Closing Date, in form and substance reasonably satisfactory to them, from Price Waterhouse LLP independent public accountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information, including the financial information contained or incorporated by reference in the Registration Statement as identified by the Borrowing Representative.
(k) Prior to the Closing Date, of the final cardioCORE Acquisition AgreementCorporation shall have furnished to the Underwriters such further information, complete with all schedules certificates and exhibits thereto, and all material related documents executed and delivered as the Underwriters may reasonably request in connection with the execution and delivery offering of the cardioCORE Acquisition AgreementCapital Securities.
(l) No downgrading in the rating accorded the Capital Securities or any other debt securities of the Corporation by any "nationally recognized statistical rating organization" (as that term is defined by the SEC for the purposes of Rule 436(g)(2) under the Securities Act) shall have occurred, all as executed and delivered by all parties theretoor any public announcement that any such organization has under surveillance or review their ratings of the Capital Securities or any other debt securities of the Corporation (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating), and if, in any such case, the terms and conditions of all effect thereof in the reasonable judgment of the foregoing shall be satisfactory Underwriters makes it impracticable or inadvisable to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance proceed with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery purchase of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing DateCapital Securities.
Appears in 1 contract
Sources: Underwriting Agreement (First Empire Capital Trust Ii)
Conditions to Closing. The obligation obligations of each Lender to enter into and become bound the Underwriters under this Agreement to purchase the Securities will be subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration Statement or of any post-effective amendment to the Registration Statement shall be in effect and no proceedings for such purpose pursuant to Rule 401(g)(2) under the Securities Act or pursuant to Section 8A of the Securities Act against the Company or related to the offering shall have been instituted or threatened by the Commission.
(b) You shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of each of the Company and the other Financing Documents andGuarantor, if applicable make any initial Loans requested by Borrowers to be made on the effect that (i) the representations and warranties of the Company and the Guarantor contained in this Agreement are true and correct as of the Closing Date, (ii) that no stop order suspending the effectiveness of the Registration Statement or of any post-effective amendment to the Registration Statement shall be subject in effect and no proceedings for such purpose pursuant to Rule 401(g)(2) under the Securities Act or pursuant to Section 8A of the Securities Act against the Company or related to the receipt offering shall have been instituted or threatened by Agent the Commission, and (iii) that the Company and the Guarantor have complied in all material respects with all of each agreementthe agreements and satisfied all of the conditions on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon his or her knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date a letter from ▇▇▇▇▇ Day, document counsel for the Company, dated the Closing Date, including the opinions and instrument views substantially in the form set forth in Schedule V.
(d) You shall have received on the closing checklist prepared by Agent or its Closing Date an opinion of special Kansas counsel, each dated the Closing Date, substantially in the form set forth in Schedule VI.
(e) You shall have received on the Closing Date an opinion of counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to you.
(f) You shall have received from Deloitte & Touche LLP, the Company’s independent registered public accounting firm, a letter, dated the date hereof, addressed to the Underwriters, in form and substance satisfactory to Agentyou.
(g) You shall have received from KPMG LLP, and such other closing deliverables reasonably requested by Agent and Lendersthe Guarantor’s independent registered public accounting firm, and a letter, dated the date hereof, addressed to the satisfaction of the following conditions precedentUnderwriters, each in form and substance satisfactory to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:you.
(ah) evidence of the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents includingYou shall have received from Deloitte & Touche LLP, without limitation, the funding of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition Clearwire Corporation’s independent registered public accounting firm or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date;
(e) receipt of copies, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lendersindependent auditor, as applicable, on a letter, dated the date hereof, addressed to the Underwriters, in form and substance satisfactory to you
(i) On the Closing Date, you shall have received from Deloitte & Touche LLP, the Company’s independent registered public accounting firm, a letter, dated the Closing Date, in form and substance satisfactory to you, to the effect that it reaffirms the statements made in the letter furnished by such firm pursuant to subsection (f) of this Section 6.
(j) On the Closing Date, you shall have received from KPMG LLP, the Guarantor’s independent registered public accounting firm, a letter, dated the Closing Date, in form and substance satisfactory to you, to the effect that it reaffirms the statements made in the letter furnished by such firm pursuant to subsection (g) of this Section 6.
(k) On the Closing Date, you shall have received from Deloitte & Touche LLP, Clearwire Corporation’s independent registered public accounting firm or independent auditor, as applicable, a letter, dated the Closing Date, in form and substance satisfactory to you, to the effect that it reaffirms the statements made in the letter furnished by such firm pursuant to subsection (h) of this Section 6.
(l) For the period from and after the date hereof and prior to the Closing Date, there shall not have occurred any:
(i) Material Adverse Change, except as set forth or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), which, in the judgment of the Representative, makes it impractical or inadvisable to proceed with the offering or delivery of the Securities; or
(ii) downgrading in the rating accorded any debt securities of the Company by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 3(a)(62) of the Exchange Act, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change.
(m) The Company shall have filed any preliminary prospectus and the Prospectus with the Commission within the time period required by Rule 424(b) under the Securities Act and shall have paid the registration fee associated with the offering of the Securities.
(n) On or before the Closing Date, you shall have received such additional documents as you may reasonably request to confirm compliance with the conditions to closing listed herein. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Sources: Underwriting Agreement (SPRINT Corp)
Conditions to Closing. The obligation obligations of the Exclusive Managing Agent hereunder shall be subject, in the discretion of the Exclusive Managing Agent, to the condition that all representations and warranties and other statements of the Company herein are, at and as of the SEC Effective Date and each Lender to enter into and become bound under this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, true and correct in all material respects, and the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be subject performed, and the following additional conditions:
(a) The Registration Statement shall have become and shall remain effective under the Act.
(b) If required, the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the Regulations.
(c) All appropriate post-effective amendments to the receipt Prospectus shall have been filed with the Commission and the Commission, on or before the relevant Subsequent Closing Date, either shall have raised no objections or comments thereto, or it shall have declared each of such post-effective amendments to be effective.
(d) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission, and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Exclusive Managing Agent.
(i) The Company (including its Subsidiaries) shall not have sustained since the date of the latest audited financial statement included in the Prospectus, any loss or interference with its business, fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, and (ii) since the respective dates as of which information is given in the Prospectus there shall not have been any change in the capital stock or long-term debt of the Company as a whole or any change, or any development involving a prospective change, in or affecting the general affairs, prospects, management, financial position, shareholders’ equity or results of operations of the Company (including its Subsidiaries) otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the reasonable judgment of the Exclusive Managing Agent so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being issued at such Closing Date on the terms and in the manner contemplated by the Prospectus.
(f) On or after the date hereof there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or the American Stock Exchange; (ii) a general moratorium on commercial banking activities in any state declared by either Federal or state authorities; (iii) any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis if the effect of any such event specified in this clause in the reasonable judgment of the Exclusive Managing Agent makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being issued at such Closing Date on the terms and in the manner contemplated in the Prospectus; or (iv) such a material adverse change in general economic, political, financial or international conditions affecting financial markets in the United States having a material adverse impact on trading prices of securities in general, as, in the reasonable judgment of the Exclusive Managing Agent makes it inadvisable to proceed with the sale of the Shares through the Exclusive Managing Agent.
(g) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the applicable Closing Date, prevent the issuance or sale of the Shares, and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the applicable Closing Date, prevent the issuance or sale of the Shares.
(h) The Exclusive Managing Agent shall have received a certificate of the Chief Executive Officer and Chief Financial Officer of the Company, dated as of each agreement, document Closing Date to the effect that (as of the SEC Effective Date and instrument as of the applicable Closing Date): (i) the conditions set forth in this Section 7 have been satisfied, (ii) the representations and warranties of the Company set forth in Section 1 hereof are accurate, (iii) all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the closing checklist prepared Company and the Subsidiaries have not sustained any material loss or interference with their respective businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereof has been issued and no proceedings therefore have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included or incorporated by reference in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included or incorporated by reference and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus there has not been any material adverse change or any development involving a prospective material adverse change, whether or not arising from transactions in the ordinary course of business, in or affecting (x) the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company and the Subsidiaries, taken as a whole; (y) the long term debt (if any) and capital stock of the Company or any of its Subsidiaries; or (z) the Offering or consummation of any of the other transactions contemplated by this Agreement, the Registration Statement and the Prospectus.
(i) The Exclusive Managing Agent or its counselshall have received the favorable written opinion of Arent Fox PLLC, each legal counsel for the Company, dated as of the applicable Closing Date addressed to the Exclusive Managing Agent in the form attached hereto as Exhibit A.
(j) As of the SEC Effective Date and as of the applicable Closing Date, the Exclusive Managing Agent shall have received a “cold comfort” letter from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP independent public accountants for the Company, dated, respectively, as of the date of delivery and addressed to the Exclusive Managing Agent and in form and substance satisfactory to Agentthe Exclusive Managing Agent and its counsel, confirming that they are independent certified public accountants with respect to the Company and its Subsidiaries within the meaning of the Act and the Regulations, and stating, as of the date of delivery (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to the date of such letter), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter and, with respect to letters issued as of subsequent Closing Dates, confirming the conclusions and findings set forth in such prior letter.
(k) NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms and arrangements between the Company and the Exclusive Managing Agent.
(l) The Company shall have furnished the Exclusive Managing Agent and its counsel with such other closing deliverables certificates, opinions or other documents as it may have reasonably requested requested.
(m) If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to the Exclusive Managing Agent or to its counsel pursuant to this Section 7 shall not be reasonably satisfactory in form and substance to the Exclusive Managing Agent and Lendersits counsel, and to the satisfaction all obligations of the following conditions precedentExclusive Managing Agent hereunder may be cancelled by the Exclusive Managing Agent at, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a) evidence of or at any time prior to, the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date;
(e) receipt of copies, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties theretoapplicable Closing, and the terms and conditions of all obligations of the foregoing Exclusive Managing Agent to act hereunder may be cancelled by the Exclusive Managing Agent. Notice of such cancellation shall be satisfactory given to Agent and Lenders and their respective counsel the Company in their sole discretion; and
(f) receipt writing, or by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreementtelephone. Each Lender, by delivering its signature page to this Agreement, Any telephonic notice shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Dateconfirmed promptly thereafter in writing.
Appears in 1 contract
Sources: Agency Agreement (Orange REIT, Inc.)
Conditions to Closing. a. The obligation of each Lender Party to enter into effect the Exchange Transactions, and become bound under to execute and deliver documents, at the Closing is subject to the satisfaction at or prior to the Closing of the following conditions: all conditions precedent to the Acquisition and the other transactions contemplated by the Purchase Agreement shall have been satisfied or waived and all deliveries and actions to occur in connection with the consummation of the Acquisition pursuant to the Purchase Agreement shall have been completed.
b. The obligation of the Noteholders to effect the Exchange Transactions, and to execute and deliver (or cause to be executed and delivered) documents, at the Closing is subject to the satisfaction at or prior to the Closing of the following conditions:
(i) each representation and warranty of Acquisition Sub contained in Section 4 of this Agreement shall have been true and correct (without regard to any materiality or similar qualifier contained therein) as of the date of this Agreement and on and as of the other Financing Documents andClosing Date (except for any representations and warranties made as of an earlier date, which shall be true and correct as of the specified date) with the same force and effect as if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall in each case, except for such failure to be subject to the receipt by Agent of each agreement, document true and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a) evidence of the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, correct as would not reasonably be expected to have a Parent Material Adverse Effect;
(dii) Acquisition Sub shall have performed or complied with all agreements and covenants required by this Agreement to be performed or complied with by Acquisition Sub on or prior to the Closing Date, in each case in all material respects;
(iii) Acquisition Sub shall have delivered a certificate signed on behalf of Acquisition Sub by an authorized officer of Acquisition Sub in the form attached hereto as Exhibit B; and
(iv) no Parent Material Adverse Effect with respect to Parent or Acquisition Sub shall have occurred since the date of this Agreement.
(v) The conditions set forth in Sections 6.1 (other than Sections 6.1(a) (solely as such condition relates to clauses (v) and (vi) of the definition of “Parent Stockholder Matters”), 6.1(b) and 6.1(h)), 6.2(c), 6.2(d), 6.2(e), 6.2(f), 6.3(c) and 6.3(e) of the Purchase Agreement shall have been satisfied.
(vi) No amendment, waiver or modification of the provisions of the Purchase Agreement (since the time such agreement was executed on January 13, 2020) that would reasonably be expected to be material and adverse to the interests of the Noteholders have been made without the Noteholders’ written consent (it being understood that, without limitation, any amendment of the provisions of the Purchase Agreement specified in Section 6.b.v (or any defined terms used in connection with such provisions), any amendment or waiver of compliance with Section 5.27 of the Purchase Agreement or any amendment to reduce the aggregate purchase price or change the form of consideration payable pursuant to the Purchase Agreement shall be deemed material and adverse to the interests of the Noteholders).
c. The obligation of Acquisition Sub to effect the Exchange Transactions, and to execute and deliver documents, at the Closing is subject to the satisfaction or waiver by Acquisition Sub in its sole discretion at or prior to the Closing of the following additional conditions:
(i) (A) the receipt representations and warranties of the initial Borrowing Base Certificate1.5 Lien Noteholders and New Subordinated Noteholders set forth in Sections 3.a and 3.b, prepared respectively, shall be true and correct (without regard to any materiality or similar qualifier contained therein) in all respects, as of the date of this Agreement and on and as of the Closing Date and (B) each other representation and warranty of the Noteholders contained in Section 3 of this Agreement shall have been true and correct (without regard to any materiality or similar qualifier contained therein) as of the date of this Agreement and on and as of the Closing Date (except for any representations and warranties made as of an earlier date, which shall be true and correct as of the specified date) with the same force and effect as if made on the Closing Date, in each case, in all material respects;
(eii) receipt of copieseach Noteholder shall have delivered to Acquisition Sub, certified as truein accordance with Section 2.b hereof, complete and correct by the Borrowing Representative, each of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and items required to be delivered by all parties thereto, and such Noteholder pursuant to Section 2.b;
(iii) each Noteholder shall have delivered a certificate signed on behalf of such Noteholder by an authorized officer thereof in the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretionform attached hereto as Exhibit C; and
(fiv) receipt each Noteholder shall have performed or complied with all agreements and covenants required by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition this Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved performed or complied with by Agent, Required Lenders such Noteholder on or Lenders, as applicable, on prior to the Closing Date, in each case in all material respects.
Appears in 1 contract
Sources: Exchange Agreement (Mudrick Capital Acquisition Corp)
Conditions to Closing. The obligation several obligations of each Lender the Underwriters to enter into purchase and become bound pay for the Debt Securities will be subject to the accuracy of the representations and warranties on the part of the Company herein contained, to the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions hereof, to the performance by the Company of all of its covenants and other obligations hereunder and to the following further conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Rule 430A of the Securities Act Regulations; and, at the Closing Date, the Registration Statement shall be effective and no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus shall have been complied with to the reasonable satisfaction of counsel to the Underwriters.
(b) The Underwriters shall have received, on the Closing Date, a certificate signed by the Chairman of the Board, the President, a Vice Chairman of the Board or any Executive or Senior Vice President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement and this Agreement and that:
(i) the other Financing Documents andrepresentations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date, with the same effect as if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall and the Company has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be subject performed or satisfied at or prior to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a) evidence of the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date;
(ii) since the date of the most recent financial statements included in the Registration Statement (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement (exclusive of any supplement thereto); and
(iii) to each such officer's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included in, or incorporated by reference in, the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Debt Securities as contemplated by the Prospectus.
(d) The Underwriters shall have received opinions, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., General Counsel to the Company, and ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Company, substantially in the form attached hereto as Exhibit A-1 and A-2, respectively. Insofar as such opinions involve factual matters, such counsel may rely, to the extent counsel to the Underwriters deems proper, upon certificates of officers of the Company, its subsidiaries and certificates of public officials.
(e) receipt The Underwriters shall have received an opinion, dated the Closing Date, of copiesMilbank, certified Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Underwriters as trueto such matters as the Underwriters shall reasonably request. In rendering such opinion, complete counsel may rely upon an opinion or opinions, each dated the Closing Date, of other counsel retained by them or the Company as to laws of any jurisdiction other than the United States or the State of New York, provided that such reliance is expressly authorized by each opinion so relied upon and correct a copy of each such opinion is delivered to the Underwriters. Insofar as such opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Company, its subsidiaries and certificates of public officials.
(f) On the Closing Date, the Debt Securities shall be rated at least "B2" by ▇▇▇▇▇'▇ Investor Service, Inc. ("Moody's") and "BB" by Standard & Poor's Rating Services, a division of McGraw Hill, Inc. ("S&P"), and the Company shall have delivered to the Underwriters a letter dated the Closing Date, from each such rating agency, or other evidence satisfactory to the Underwriters, confirming that the Debt Securities have such ratings; and on or prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given on or after the date hereof of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's securities by any "nationally recognized statistical rating organization" as such term is defined by the Borrowing RepresentativeCommission for the purposes of Rule 436(g)(2) under the Securities Act; no public announcement shall have been made that any such organization has under surveillance or review their ratings of the Debt Securities or any other debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating), and if, in any such case, the final cardioCORE Acquisition effect thereof in the reasonable judgment of the Underwriters makes it impracticable or inadvisable to proceed with the purchase of the Debt Securities.
(g) At the time of the execution of this Agreement, complete the Underwriters shall have received a letter, dated such date, in form and substance reasonably satisfactory to them, from Deloitte & Touche LLP, independent public accountants of the Company, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with all schedules respect to the financial statements and exhibits theretocertain financial information, and all material related documents executed and delivered including the financial information contained or incorporated by reference in connection with the Registration Statement as identified by the Representative.
(h) At the Closing Date the Representative shall have received from Deloitte & Touche LLP a letter, dated as of the Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (g) of this Section.
(i) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the cardioCORE Acquisition Agreementfollowing: (i) trading in securities generally on the New York Stock Exchange, all the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by U.S. federal or state authorities, (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such), including, without limitation, as executed and a result of terrorist activities after the date hereof, as to make it, in the judgment of the Underwriters, impracticable or inadvisable to proceed with the offering or delivery of the Debt Securities being delivered by all parties thereto, and on such Closing Date on the terms and conditions of all of in the foregoing shall be satisfactory to Agent and Lenders and their respective counsel manner contemplated in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing DateProspectus.
Appears in 1 contract
Sources: Underwriting Agreement (Great Atlantic & Pacific Tea Co Inc)
Conditions to Closing. The obligation several obligations of each Lender the Underwriters to purchase and pay for the Certificates pursuant to this Agreement are subject to the accuracy of and compliance with the representations and warranties of the Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the officers of the Company made in any certificate furnished pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder and to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading in the rating accorded any of the securities of the Company by ▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's Ratings Service, nor shall any notice have been given of (i) any intended or potential downgrading or (ii) any review or possible change in such rating.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change, or any development reasonably likely to result in a material adverse change, in the financial condition or in the earnings or business affairs of the Company from that set forth or contemplated in the preliminary prospectus, that, in your judgment, makes it impracticable to market the Certificates on the terms and in the manner contemplated in the Prospectus.
(c) You shall have received on the Closing Date a certificate, dated the Closing Date and signed by a Vice President, Treasurer or Assistant Treasurer of the Company, to the effect (i) that no event set forth in clause (a) above has occurred, (ii) that the representations and warranties of the Company contained herein are true and correct as of the Closing Date (except to the extent that a representation or warranty expressly relates to an earlier or later date, in which case it will be true and correct as of such date), (iii) that there shall not have occurred any material adverse change, or any development reasonably likely to result in a material adverse change, in the financial condition or in the earnings or business affairs of the Company from that set forth or contemplated in the preliminary prospectus, and (iv) that the Company shall have performed in all material respects all of its obligations to be performed hereunder on or prior to the Closing Date. The officer signing and delivering such certificate may rely on the best of his or her knowledge.
(d) You shall have received on the Closing Date an opinion, dated the Closing Date, from the General Counsel, Deputy General Counsel or Associate General Counsel of the Company, in form satisfactory to you and your counsel, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware and has all necessary corporate power and authority under such laws to own its properties, to conduct its business as described in the Prospectus, to enter into this Agreement and become bound each of the Operative Documents to which it is a party and to perform its obligations hereunder and thereunder (except where the failure to have such power or authority would not have a material adverse effect on the Company); and the Company is duly qualified to transact business as a foreign corporation in good standing in each jurisdiction in which its ownership of property or the conduct of its business requires such qualification (except where the failure to so qualify would not have a material adverse effect upon the Company);
(ii) The Company is an "air carrier" and a "citizen of the United States" within the meaning of the Transportation Code, and is "holding an air carrier operating certificate issued by the Secretary of Transportation" within the meaning of 11 U.S.C. ss. 1110; the descriptions in the Registration Statement and the Prospectus with respect to statutes, contracts, administrative orders and regulations and legal and governmental proceedings are accurate and fairly summarize the information required to be shown; and there are, to the best of such counsel's knowledge, no statutes, administrative orders or regulations or pending or threatened legal or governmental proceedings required to be described in the Registration Statement or the Prospectus which are not described as required, nor any contracts or documents of a character required to be described or referred to in the Registration Statement or the Prospectus, or to be filed as exhibits to the Registration Statement, that are not so described, referred to or filed as required;
(iii) The statements in the Prospectus as to the routes that the Company presently operates or is authorized to operate are correct in all material respects. Except as disclosed in the Prospectus, no action or proceeding has been instituted or to such counsel's knowledge, has been threatened by the United States Department of Transportation, the Federal Aviation Administration or the aeronautical authorities of any other country that would impair the Company's ability to operate such routes;
(iv) This Agreement has been duly authorized, executed and delivered by the Company;
(v) No authorization, approval, consent, license, order of, or registration with, or the giving of notice to, any government, governmental instrumentality, or court, domestic or foreign, or other regulatory body or authority (other than with respect to the effectiveness of the Registration Statement under the 1933 Act or the qualification of the Basic Agreement under the 1939 Act and other than with respect to the securities or Blue Sky laws of the various states and with respect to any registration, filing or recording that may be required under the Transportation Code and the Uniform Commercial Code as in effect in various jurisdictions) is required to be obtained or made by the Company for the valid authorization, issuance, sale and delivery of the Certificates and the Equipment Notes relating thereto or for the valid authorization, execution, delivery and performance by the Company of this Agreement and each of the Operative Documents to which the Company is a party or the consummation of the transactions contemplated by this Agreement and such Operative Documents;
(vi) The execution and delivery by the Company of this Agreement and the Operative Documents to which the Company is or will be a party, the issuance and sale of the Certificates and the related Equipment Notes, the issuance of the Escrow Receipts attached to the Certificates, the consummation by the Company of the transactions contemplated herein and therein and in the Prospectus and compliance with the terms hereof and thereof do not and will not result in any violation of the charter or by-laws of the Company and do not and will not conflict with or violate, or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company under (A) any indenture, mortgage or loan agreement, or any other Financing agreement or instrument known to such counsel, to which the Company is a party or by which either it be bound or to which any of its properties may be subject (except for such conflicts, breaches, defaults, violations, liens, charges or encumbrances that, individually or in the aggregate, would not have a material adverse effect on the financial condition or on the earnings or business affairs of the Company and its subsidiaries considered as a single entity), (B) any existing applicable law, rule or regulation (other than the securities or Blue Sky laws of the various states, as to which such counsel need express no opinion) or (C) any judgment, order or decree known to such counsel of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its properties;
(vii) No default exists in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, loan agreement, note, lease or other agreement or instrument that is described or referred to in the Registration Statement or the Prospectus or filed as an exhibit to the Registration Statement;
(viii) Except as disclosed in the Prospectus, there is no action, suit or proceeding before or by any government, governmental instrumentality or court, domestic or foreign, now pending or, to the knowledge of such counsel, threatened against or affecting the Company that might reasonably be expected to result in any material adverse change in the financial condition or in the earnings or business affairs of the Company, or that could adversely affect the consummation of the transactions contemplated by this Agreement or any of the other Operative Documents to which the Company is a party; and
(ix) Such counsel has participated in the preparation of the Registration Statement, the Prospectus and the documents incorporated by reference in the Prospectus and such counsel has no reason to believe (A) that the Registration Statement or any amendment thereto (except for the financial statements and other financial or statistical data included or incorporated by reference therein or omitted therefrom, and except for the Statement of Eligibility on Form T-1 of the Trustee, as to which such counsel need express no opinion), at the time the Registration Statement became effective, contained and, if applicable make as of the date such opinion is delivered, contains any initial Loans requested by Borrowers untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or (B) that the Prospectus or any amendment or supplement thereto (except for (1) the financial statements and other financial or statistical data included or incorporated by reference therein or omitted therefrom and (2) statements in or omissions from the Prospectus made on with respect to information relating to the Policy Provider, as to both of which such counsel need express no opinion), at the time the Prospectus was issued, at the time any amended or supplemented Prospectus was issued or as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(e) You shall have received on the Closing Date an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company, in form and substance reasonably satisfactory to you and substantially to the effect set forth in Exhibit A hereto.
(f) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇, LLP, counsel for State Street Bank and Trust Company of Connecticut, National Association, individually and as Trustee, Subordination Agent and Paying Agent, dated the Closing Date, in form and substance reasonably satisfactory to you and substantially to the effect set forth in Exhibit B hereto.
(g) You shall have received on the Closing Date an opinion of ▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Escrow Agent, dated the Closing Date, in form and substance reasonably satisfactory to you and substantially to the effect set forth in Exhibit C hereto.
(h) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special New York counsel for the Liquidity Provider, dated the Closing Date, in form and substance reasonably satisfactory to you and substantially to the effect set forth in Exhibit D-1 hereto and an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Kelwing ▇▇▇▇▇, special German counsel for the Liquidity Provider, dated the Closing Date, in form and substance reasonably satisfactory to you and substantially to the effect set forth in Exhibit D-2 hereto.
(i) You shall have received on the Closing Date the opinion of ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special U.S. counsel for the Depositary for the Trusts, dated the Closing Date, in form and substance reasonably satisfactory to you and substantially to the effect set forth in Exhibit E hereto.
(j) You shall have received on the Closing Date the opinion of Clifford Chance, Dutch counsel for the Depositary for the Trusts, dated the Closing Date, in form and substance reasonably satisfactory to you and substantially to the effect set forth in Exhibit F hereto.
(k) You shall have received the opinion, dated as of the Closing Date, of the General Counsel for the Policy Provider, in form and substance reasonably satisfactory to you and substantially to the effect set forth in Exhibit G.
(l) You shall have received the opinion of ▇▇▇▇ ▇▇▇▇▇▇▇, special counsel to the Policy Provider, dated as of the Closing Date, in form and substance reasonably satisfactory to you and substantially to the effect set forth in Exhibit H.
(m) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, as counsel for the Underwriters, dated as of the Closing Date, with respect to the issuance and sale of the Certificates, the Registration Statement, the Prospectus and other related matters as the Underwriters may reasonably require.
(n) On the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act and no proceedings therefor shall have been instituted or threatened by the Commission.
(o) Each of the Appraisers shall have furnished to the Underwriters a letter from such Appraiser, addressed to the Company and dated the Closing Date, confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the Company or any of its affiliates, (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates and (iii) is not connected with the Company or any of its affiliates as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
(p) At the Closing Date, each of the Operative Documents (other than the Indentures, Leases and Participation Agreements) shall have been duly executed and delivered by each of the parties thereto; the representations and warranties of the Company contained in each of such executed Operative Documents shall be subject true and correct in all material respects as of the Closing Date (except to the receipt extent that they relate solely to an earlier or later date, in which case they shall be true and correct as of such earlier or later date) and the Underwriters shall have received a certificate of the President or a Vice President of the Company, dated as of the Closing Date, to such effect.
(q) On the Closing Date, the Certificates shall be rated "AAA" by Agent Standard & Poor's Ratings Service and "Aaa" by ▇▇▇▇▇'▇ Investors Service, Inc.
(r) The Underwriters shall have received on each of each agreementthe date of this Agreement and the Closing Date, document and instrument set forth on a letter dated the closing checklist prepared by Agent date hereof or its counselthe Closing Date, each as the case may be, in form and substance satisfactory to Agentthe Underwriters, from the Company's independent public accountants, containing statements and such other closing deliverables reasonably requested by Agent and Lenders, and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the satisfaction of financial statements and certain other financial or statistical data and certain financial information contained in or incorporated by reference into the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a) evidence of the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date;
(e) receipt of copies, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, Registration Statement and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing DateProspectus.
Appears in 1 contract
Conditions to Closing. The obligation Underwriter has entered into this Purchase Agreement in reliance upon the representations and warranties of each Lender to enter into and become bound under this Agreement the District contained herein and the other Financing Documents andperformance by the District of its obligations hereunder, if applicable make any initial Loans requested by Borrowers to be made on both as of the date hereof and as of the Closing Date, . The Underwriter’s obligations under this Purchase Agreement are and shall be subject at the option of the Underwriter, to the receipt by Agent of each agreement, document and instrument set forth on following further conditions at the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionClosing:
(a) evidence The representations and warranties of the consummation County and the District contained herein shall be true, complete and correct in all material respects at the date hereof and at and as of the transactions (other than the funding Closing, as if made at and as of the Loan) contemplated Closing, and the statements made in all certificates and other documents delivered to the Underwriter at the Closing pursuant hereto shall be true, complete and correct in all material respects on the Closing Date; and the County and the District shall be in compliance with each of the agreements made by the Operative Documents includingeach of them, without limitationrespectively, the funding of any and all investments contemplated by the Operative Documentsin this Purchase Agreement;
(b) At the payment time of the Closing, (i) the Official Statement, this Purchase Agreement, the Continuing Disclosure Certificate and the Resolutions shall be in full force and effect and shall not have been amended, modified or supplemented except as may have been agreed to in writing by the parties hereto; (ii) all feesactions under the Act which, expenses in the opinion of Bond Counsel, shall be necessary in connection with the transactions contemplated hereby, shall have been duly taken and other amounts due shall be in full force and payable effect; and (iii) the County and the District shall perform or have performed all of their respective obligations required under each Financing Documentor specified in the Resolutions, this Purchase Agreement or the Official Statement to be performed at or prior to the Closing;
(c) Since December 31No decision, 2011ruling or finding shall have been entered by any court or governmental authority since the date of this Purchase Agreement (and not reversed on appeal or otherwise set aside), there or to the best knowledge of the County or the District, is pending (in which service of process has been no developmentcompleted against the County or the District) or threatened (either in state or federal courts)
(i) seeking to restrain or enjoin the execution, event, act, condition sale or occurrence delivery of any nature that has occurred that has had of the Bonds, (ii) in any way contesting or couldaffecting the authority for the execution, either individually sale or delivery of the Bonds, the Continuing Disclosure Certificate or this Purchase Agreement, or (iii) in any way contesting the aggregateexistence or powers of the County or the District, reasonably be expected to have a Material Adverse Effector contesting in any way the completeness or accuracy of the Official Statement;
(d) Between the receipt date hereof and the Closing, the market price for the Bonds, or the market for or marketability or the ability of the Underwriter to enforce contracts for the sale of the Bonds at the initial Borrowing Base offering prices set forth in the Official Statement, shall not have been materially adversely affected by reason of any of the following:
(1) legislation enacted by the Congress of the United States, or by the legislature of the State, or introduced in the Congress or recommended for passage by the President of the United States, or a decision rendered by a court of the United States or the State or by the United States Tax Court, or an order, ruling, regulation (final, temporary or proposed) or official statement issued or made:
(i) by or on behalf of the United States Treasury Department, or by or on behalf of the Internal Revenue Service or other federal or State authority, which would have the purpose or effect of changing, directly or indirectly, the federal income tax consequences or State tax consequences of interest on obligations of the general character of the Bonds in the hands of the holders thereof; or
(ii) by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction over the subject matter thereof, to the effect that the Bonds, or obligations of the general character of the Bonds, including any and all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended, or that the County Resolution is not exempt from qualification under the Trust Indenture Act of 1939, as amended;
(2) the declaration of war or engagement in or escalation of major military hostilities by the United States or the occurrence of any other national or international emergency or calamity or crisis relating to the effective operation of the government or the financial community in the United States;
(3) the declaration of a general banking moratorium by federal, New York or State authorities having jurisdiction, or the general suspension of trading on any national securities exchange or fixing of minimum or maximum prices for trading or maximum ranges for prices for securities on any national securities exchange, whether by virtue or a determination by that exchange or by order of the Securities and Exchange Commission or any other governmental authority having jurisdiction;
(4) the imposition by the New York Stock Exchange, other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds, or obligations of the general character of the Bonds, or securities generally, or the material increase of any such restrictions now in force;
(5) an order, decree or injunction of any court of competent jurisdiction, or order, filing, regulation or official statement by the Securities and Exchange Commission, or any other governmental agency having jurisdiction over the subject matter thereof, issued or made to the effect that the issuance, offering or sale of obligations of the general character of the Bonds, or the issuance, offering or sale of the Bonds, as contemplated hereby or by the Official Statement, is or would be in violation of the federal securities laws, as amended and then in effect;
(6) the withdrawal or downgrading of any [underlying] rating or credit watch status or outlook of the District’s outstanding indebtedness by a national rating agency; or
(7) any event occurring, or information becoming known which, in the reasonable judgment of the Underwriter, makes untrue in any material adverse respect any statement or information set forth in the Official Statement, or has the effect that the Official Statement contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading;
(e) At or prior to the Closing Date, the Underwriter shall have received the following documents, in each case dated as of the Closing Date and satisfactory in form and substance to the Underwriter:
(1) An approving opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP (“Bond Counsel”), substantially in the form attached as Appendix C to the Official Statement, dated the Closing Date and addressed to the County and the District;
(2) A reliance letter from Bond Counsel to the effect that the Underwriter may rely upon the approving opinion described in (e)(1) above;
(3) A certificate, signed by an appropriate official of the District, to the effect that (i) such official is authorized to execute this Purchase Agreement and the Continuing Disclosure Certificate, prepared (ii) the representations and warranties of the District herein are true and correct in all material respects as of the Closing Date, (iii) the District has complied with all the terms of the District Resolution and this Purchase Agreement to be complied with by the District prior to or concurrently with the Closing and such documents are in full force and effect, (iv) to the best of such official’s knowledge, no litigation is pending or threatened (either in state or federal courts) (A) seeking to restrain or enjoin the execution, sale or delivery of any of the Bonds, (B) in any way contesting or affecting the authority for the execution, sale or delivery of the Bonds, the Continuing Disclosure Certificate or this Purchase Agreement, or (C) in any way contesting the existence or powers of the District, (v) such official has reviewed the Official Statement and on such basis certifies that the Official Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, (vi) each of the conditions listed in Section 11 of this Purchase Agreement has been satisfied on the date hereof and the District is not aware of any other condition of this Purchase Agreement that has not been satisfied on the date hereof, and (vii) the Bonds being delivered on the Closing Date to the Underwriter under this Purchase Agreement substantially conform to the descriptions thereof contained in the County Resolution and this Purchase Agreement;
(e4) receipt A certificate signed by appropriate officials of copiesthe County to the effect that (i) such officials are authorized to execute and to approve this Purchase Agreement, certified as true(ii) the representations, complete agreements and warranties of the County herein are true and correct in all material respects as of the Closing Date, (iii) the County has complied with all the terms of the County Resolution and this Purchase Agreement to be complied with by the Borrowing RepresentativeCounty prior to or concurrently with the Closing and such documents are in full force and effect, (iv) such official has reviewed the information contained in the Official Statement in Appendix E – “County of Riverside Pooled Investment Fund” and on such basis certifies that the information contained in the Official Statement in such Appendix E does not contain any untrue statement of a material fact concerning the County required to be stated therein or omit to state a material fact necessary to make the statements concerning the County therein, in the light of the final cardioCORE Acquisition circumstances in which they were made, not misleading; and (v) the Bonds being delivered on the Closing Date to the Underwriter under this Purchase Agreement substantially conform to the descriptions thereof contained in the County Resolution and this Purchase Agreement;
(5) The opinion of ▇▇▇▇▇▇, complete ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, as disclosure counsel to the District, addressed to the District and the Underwriter, dated the Closing Date, to the effect that, based on such counsel’s participation in conferences with all schedules and exhibits theretorepresentatives of the Underwriter, the County, the District, the Paying Agent, [the Insurer,] their respective counsel, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., as financial advisor to the District, and all others, during which conferences the contents of the Official Statement and related matters were discussed (but with no inquiry made of other attorneys in such counsel’s firm not working directly on the issuance of the Bonds who may have information material related documents executed to the issue), and delivered in reliance thereon, on oral and written statements and representations of the District and others and on the records, documents, certificates and opinions described therein, such counsel advises the District and the Underwriter, as a matter of fact and not opinion, that, during the course of its engagement as disclosure counsel no facts came to the attention of such counsel’s attorneys rendering legal services in connection with such representation which caused such counsel to believe that the Official Statement as of its date and as of the Closing Date (except for any CUSIP numbers, financial, accounting, statistical, economic or demographic data or forecasts, numbers, charts, tables, graphs, estimates, projections, assumptions or expressions of opinion, or any information about litigation, Appendices B, E, F, [G and H], or any information about [the Insurer, the Policy,] book-entry or DTC, included or referred to therein or omitted therefrom, as to which such counsel need express no opinion or view) contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(6) the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇ & ▇▇▇▇, Cerritos, California, as counsel to the District (“District Counsel”), addressed to the County, the District, [the Insurer] and the Underwriter, dated the Closing Date, to the effect that:
(i) the District is a school district validly existing under the Constitution and the laws of the State of California;
(ii) the District Resolution approving and authorizing the issuance, execution, sale and delivery of the Bonds and the execution, delivery and performance by the District of this Purchase Agreement and the Continuing Disclosure Certificate was duly adopted at a meeting of the Board of Education, which was called and held pursuant to law and with all public notice required by law and at which a quorum was present and acting at the time of adoption;
(iii) to the best knowledge of such counsel, there is no action, suit, proceeding or investigation at law or in equity before or by any court or governmental agency or body, pending (in which service of process has been completed against the District) or threatened against the District, in any way contesting or affecting the validity of the District Resolution, the Continuing Disclosure Certificate or this Purchase Agreement or contesting the powers of the District to enter into or perform its obligations under such agreements;
(iv) To the best of such firm’s knowledge, the issuance of the Bonds, the execution and delivery of this Purchase Agreement and the cardioCORE Acquisition AgreementContinuing Disclosure Certificate and the performance by the District of its obligations under the District Resolution, all as this Purchase Agreement and the Continuing Disclosure Certificate do not and will not conflict with or constitute on the part of the District a material breach of, or a material default under, any agreement, indenture, mortgage, lease or other instrument to which the District is subject or by which it is bound or any existing court order or consent decree to which the District is subject;
(v) this Purchase Agreement and the Continuing Disclosure Certificate have been duly authorized, executed and delivered by all the District and, assuming due authorization, execution and delivery by the other respective parties thereto, if any, this Purchase Agreement and the terms Continuing Disclosure Certificate constitute legal, valid and conditions of all binding agreements of the foregoing shall District enforceable in accordance with their terms, except as the enforcement thereof may be satisfactory to Agent limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors’ rights generally and Lenders by the application of equitable principles, if equitable remedies are sought, and their respective counsel by the limitations on legal remedies imposed on actions against school districts in their sole discretionthe State; and
(fvi) receipt by Agent To the best of evidence such firm’s knowledge, the District is not in breach of or default under any applicable law or administrative regulation of the State or any applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the District is a party or is otherwise subject, which breach or default would materially adversely affect the District’s ability to enter into or perform its obligations under this Purchase Agreement or the Continuing Disclosure Certificate and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute such a breach or default;
(7) The opinion of County Counsel for the County of Riverside, as counsel to the County, addressed to the [Insurer and the] Underwriter, dated the Closing Date and in a form reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed Underwriter and consummated to Bond Counsel;
(8) [The opinion of counsel for the Underwriter, dated the Closing Date and addressed to the Underwriter, satisfactory in accordance with form and substance to the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery Underwriter;]
(9) The Continuing Disclosure Certificate signed by an appropriate official of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page District and in form and substance reasonably satisfactory to this Agreement, shall be deemed the Underwriter;
(10) A non-arbitrage certificate of the District with respect to have acknowledged receipt of, and consented the Bonds in form satisfactory to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required Bond Counsel;
(11) Evidence satisfactory to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Date.Underwriter that any ratings described in the Official Statem
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to Closing. The obligation Unless waived by the Managers, the several obligations of each Lender the Underwriters hereunder are subject to enter into the accuracy of the representations and become bound under this warranties on the part of the Company contained herein as of the date of the Underwriting Agreement and the other Financing Documents and, Closing Date (as if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall ) and the performance by the Company of all the obligations to be subject performed by it under this Agreement on or prior to the receipt by Agent of each agreement, document Closing Date and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionconditions:
(a) evidence Subsequent to the Applicable Time and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the consummation possible change, in the rating accorded the Company or any of the transactions (other than the funding securities of the LoanCompany by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) contemplated by of the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;Exchange Act.
(b) No stop order suspending the payment effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission, and there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business, properties or operations of the Company and its consolidated subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus, that, in the judgment of the Managers, is material and adverse and that makes it, in the judgment of the Managers, impracticable or inadvisable to market or deliver the Offered Securities on the terms and in the manner contemplated in the Time of Sale Prospectus; and the Managers shall have received, on the Closing Date, a certificate, dated the Closing Date and signed by either the chief executive officer or chief financial officer of the Company, to the foregoing effect. Such certificate will also provide that the representations and warranties of the Company contained herein are true and correct as of the Closing Date and that the Company has complied with all fees, expenses agreements and other amounts due and payable under each Financing Document;satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date. The officer making such certificate may rely upon the best of his knowledge as to proceedings threatened.
(c) Since December 31The Managers shall have received on the Closing Date an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇, 2011Senior Vice President, there General Counsel and Corporate Secretary of the Company (or another lawyer of the Company reasonably satisfactory to the Underwriters), dated the Closing Date, addressed to the Managers to the effect (as applicable) that:
(i) each of the Company and Kansas Gas and Electric Company (the “Principal Subsidiary”) has been no developmentduly incorporated, eventis validly existing as a corporation in good standing under the laws of the State of Kansas and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification (except where the failure to so qualify would not have a material adverse effect upon the business or financial condition of the Company and its subsidiaries, actas a whole);
(ii) all of the issued shares of capital stock of the Principal Subsidiary have been duly and validly authorized and issued, condition are fully paid and non-assessable, and (except for directors’ qualifying shares and except as otherwise set forth in the Time of Sale Prospectus and the Prospectus) are owned directly and indirectly by the Company, free and clear of all liens, encumbrances, equities or occurrence claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that he believes that both the Managers and he are justified in relying upon such opinions and certificates);
(iii) the Company has an authorized capitalization as set forth in the Time of Sale Prospectus and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iv) each of the indenture dated as of August 1, 1998 (the “Senior Indenture”) between the Company and Deutsche Bank Trust Company Americas, as successor to Bankers Trust Company, as trustee (the “Senior Debt Trustee”), the indenture to be dated as of a date indicated in a relevant prospectus supplement (the “Subordinated Indenture”) between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Subordinated Debt Trustee”), the Mortgage and Deed of Trust, dated July 1, 1939, between the Company and The Bank of New York Mellon Trust Company, N.A., as successor to ▇▇▇▇▇▇ Trust and Savings Bank, as trustee (the “Mortgage Bond Trustee”), as amended and supplemented by forty-two supplemental indentures supplemental thereto, in addition to the forty-second supplemental (reopening) indenture, (such Mortgage and Deed of Trust, as heretofore amended and supplemented, the “Mortgage”) and as to be amended and supplemented by the supplemental indenture, to be dated as of a date indicated in a relevant prospectus supplement (the “Supplemental Indenture”) (the Mortgage, as so amended and supplemented by such supplemental indentures, the “Amended Mortgage”), has been duly authorized, executed and delivered by the Company;
(v) assuming the due authorization, execution and delivery by the other parties thereto, the Amended Mortgage constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability;
(vi) the Amended Mortgage has been duly recorded and filed in each place in which such recording or filing is required to protect and preserve the lien of the Amended Mortgage, and all taxes and recording or filing fees required to be paid in connection with the execution, recording or filing of the Amended Mortgage have been duly paid;
(vii) the Company has good and sufficient title to, or a satisfactory easement in, all the real property, and has good and sufficient title to all the personal property described in the Amended Mortgage as owned by it and subject to the lien of the Amended Mortgage, except any which may have been released from the lien thereof pursuant to the provisions thereof, subject only to (a) minor leases and liens of judgments not prior to the lien of the Amended Mortgage, which, in such counsel’s opinion, do not interfere with the Company’s business, (b) minor defects, irregularities and deficiencies in titles of properties and rights-of-way which, in such counsel’s opinion, do not materially impair the use of such property and rights of- way for the purposes for which they are held by the Company, and (c) other permitted liens as defined in the Amended Mortgage; subject to the qualifications set forth in this Section 4(c)(vii), the Amended Mortgage constitutes a valid, direct first mortgage lien upon said properties and upon all franchises owned by the Company, which properties and franchises include all the physical properties and franchises of the Company (other than classes of property expressly excepted in the Amended Mortgage); all physical properties and franchises (other than classes of property expressly excepted in the Amended Mortgage as aforesaid) thereafter acquired by the Company will, upon such acquisition, become subject to the lien thereof, subject, however, to liens permitted thereby and to any liens existing or placed upon such properties at the time of the acquisition thereof by the Company and except as described in the Time of Sale Prospectus and the Prospectus; and the descriptions of all such properties and assets contained in the granting clauses of the Amended Mortgage are correct and adequate for the purposes of the Amended Mortgage;
(viii) the Warrant Agreement, if any, has been duly authorized, executed and delivered by the Company;
(ix) the Unit Agreement, if any, has been duly authorized, executed and delivered by the Company;
(x) the Offered Securities have been duly authorized, executed, and delivered by the Company;
(xi) when the Offered Securities have been duly executed and authenticated in accordance with the provisions of the relevant Senior Indenture, Subordinated Indenture or Amended Mortgage, the Offered Securities will be valid and binding obligations of the Company, enforceable against them in accordance with their terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and will be entitled to the benefits of the relevant Senior Indenture, Subordinated Indenture or Amended Mortgage and to the lien of the Amended Mortgage;
(xii) this Agreement has been duly authorized, executed and delivered by the Company;
(xiii) except as rights to indemnity and contribution under this Agreement may be limited under applicable law, the execution and delivery by the Company of, and the performance by the Company of its obligations under this Agreement, the Senior Indenture, the Subordinated Indenture, the Amended Mortgage, the Offered Securities, the Warrant Agreement and the Unit Agreement will not contravene any provision of the laws of the State of Kansas or any federal law of the United States of America (including laws relating specifically to electric utility companies and the electric utility industry) that in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the topic contemplated by this Agreement, or, to the best knowledge of such counsel, of any nature other state or jurisdiction of the United States, or the articles of incorporation or by-laws (or similar organizational document) of the Company or, to the best knowledge of such counsel, any material agreement or other material instrument binding upon the Company, the Senior Indenture, the Subordinated Indenture, the Amended Mortgage, the Offered Securities, the Warrant Agreement and the Unit Agreement, provided that has occurred such counsel need not express an opinion as to federal or state securities or Blue Sky laws, and no consent, approval or authorization of any governmental body or agency under the laws of the State of Kansas or any federal law of the United States of America (except with respect to consents, approvals and authorizations relating specifically to the public utility companies or the utilities industry, as to which such counsel is not called upon to express any opinion) that has had in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the topic contemplated by this Agreement, or, to the best knowledge of such counsel, of any other state or couldjurisdiction of the United States of America or of any foreign jurisdiction is required for the performance by the Company of its obligations under this Agreement, either the Senior Indenture, the Subordinated Indenture, the Amended Mortgage, the Offered Securities, the Warrant Agreement, and the Unit Agreement provided that such counsel need not express an opinion as to federal or state securities or Blue Sky laws;
(xiv) each of the Company and the Principal Subsidiary possesses valid franchises, certificates of convenience and authority, licenses and permits authorizing it to carry on the electric utility business in which it is engaged, except in the cases that the failure to possess such franchises, certificates, licenses or permits, individually or in the aggregate, would not be reasonably expected to have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole, and neither the Company nor the Principal Subsidiary has received any notice of proceedings relating to the revocation or modification of any such franchise, certificate of convenience and authority, license or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effectmaterial adverse effect, except as set forth in or contemplated in the Time of Sale Prospectus and the Prospectus;
(dxv) the receipt statements (A) in Item 3 of the initial Borrowing Base CertificateCompany’s most recent Annual Report on Form 10-K incorporated by reference in the Time of Sale Prospectus and the Prospectus, prepared as (B) in Part II, Item 1 under the caption “Legal Proceedings” of the Closing DateCompany’s most recent Quarterly Report on Form 10-Q incorporated by reference in the Time of Sale Prospectus and (C) in the Registration Statement in Item 15, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings;
(exvi) receipt such counsel does not know of copiesany legal or governmental proceeding pending or threatened (including, certified as truewithout limitation, complete and correct by proceeding pending before the Borrowing Representative, State Corporation Commission of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with State of Kansas (“KCC”) or Federal Regulatory Energy Commission (“FERC”)) to which the execution and delivery Company or any of its subsidiaries is a party or to which any of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all properties of the foregoing shall Company or any of its subsidiaries is subject which is required to be satisfactory described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and is not so described, or of any contract, other document, public utility law or regulation which is required to Agent and Lenders and their respective counsel be described in their sole discretion; andthe Registration Statement, the Time of Sale Prospectus or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required;
(fxvii) receipt by Agent the securities into which the Offered Securities are convertible, initially reserved for issuance upon conversion of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has Offered Company Securities (the “Underlying Securities”), have been closed duly authorized and consummated reserved for issuance;
(xiii) when the Underlying Securities are issued upon conversion of the Offered Company Securities in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery terms of the cardioCORE Acquisition Agreement. Each LenderOffered Company Securities, by delivering its signature page such Underlying Securities will be validly issued, fully paid and non-assessable and will not be subject to this Agreement, shall be deemed any preemptive or other right to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders subscribe for or Lenders, as applicable, on the Closing Date.purchase such Underlying Securities;
Appears in 1 contract
Conditions to Closing. The obligation several obligations of each Lender the Underwriters to enter into purchase and become bound under this Agreement and pay for the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall Capital Securities will be subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionconditions:
(a) evidence If filing of the consummation Final Prospectus is required pursuant to Rule 424(b) of the transactions (other than Securities Act Regulations, the funding Final Prospectus shall have been timely filed with the Commission in accordance with Rule 424(b) of the Loan) contemplated Securities Act Regulations; and at the Closing Date [and any Option Closing Date], no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;Commission.
(b) The Underwriters shall have received, on the payment Closing Date [and on the Option Closing Date], a certificate signed by the Chairman of the Board, the President, a Vice Chairman of the Board or any Executive or Senior Vice President and the principal financial or accounting officer of the Corporation, dated the Closing Date [or the Option Closing Date, as the case may be], to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Corporation in this Agreement are true and correct in all feesmaterial respects on and as of the Closing Date [or the Option Closing Date, expenses as the case may be] with the same effect as if made on the Closing Date [or the Option Closing Date, as the case may be] and other amounts due the Corporation has complied in all material respects with all the agreements and payable under each Financing Documentsatisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the Closing Date [or the Option Closing Date, as the case may be];
(cii) Since December 31no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, 2011to the Corporation’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Final Prospectus (exclusive of any supplement thereto), there has been no developmentmaterial adverse change in the business, event, act, financial condition or occurrence results of operations of the Corporation and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any nature that has occurred that has had or couldsupplement thereto).
(c) Subsequent to the date hereof or, either individually or if earlier, the dates as of which information is given in the aggregateRegistration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment thereof), reasonably be expected there shall not have been any change, or any development involving a prospective change, in or affecting the business or properties of the Corporation and its subsidiaries the effect of which is, in the judgment of the Underwriters, so material and adverse as to have a Material Adverse Effect;make it impractical or inadvisable to proceed with the offering or the delivery of the Capital Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment thereof).
(d) The Underwriters shall have received an opinion, dated the receipt Closing Date [and any Option Closing Date], of special counsel to the Corporation, substantially in the form attached hereto as Exhibit A. In rendering such opinion, counsel may state that they are passing only on matters of [New York, Pennsylvania and United States Federal law]. In rendering such opinion, counsel may rely upon an opinion or opinions, each dated the Closing Date[ or the Option Closing Date, as the case may be], of other counsel retained by them or the Corporation as to laws of any jurisdiction other than the United States, the Commonwealth of Pennsylvania, or the State of New York, provided that (i) such reliance is expressly authorized by each opinion so relied upon and a copy of each such opinion is delivered to the Underwriters, and (ii) counsel shall state in their opinion that they and the Underwriters are justified in relying thereon. Insofar as such opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the initial Borrowing Base CertificateCorporation, prepared its subsidiaries and the Trust and certificates of public officials.
(e) The Underwriters shall have received an opinion, dated the Closing Date [and any Option Closing Date], of counsel to the Trust Company and Trust Delaware, substantially in the form attached hereto as Exhibit B.
(f) The Underwriters shall have received an opinion, dated the Closing Date [and any Option Closing Date], of counsel to the Underwriters as to such matters as the Underwriters shall reasonably request. In rendering such opinion, counsel may rely upon an opinion or opinions, each dated the Closing Date, of other counsel retained by them or the Corporation as to laws of any jurisdiction other than the United States, the State of New York or the Commonwealth of Pennsylvania, provided that (i) such reliance is expressly authorized by each opinion so relied upon and a copy of each such opinion is delivered to the Underwriters, and (ii) counsel shall state in their opinion that they believe that they and the Underwriters are justified in relying thereon. Insofar as such opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Corporation, its subsidiaries and the Trust and certificates of public officials.
(g) The Underwriters shall have received an opinion, dated the Closing Date [and any Option Closing Date], of special Delaware counsel to the Corporation and the Trust, substantially to the effect and in the form attached hereto as Exhibit C.
(h) At the date hereof, at the Closing Date and at any Option Date, the Underwriters shall have received letters, dated respectively as of the date hereof, as of the Closing Date and as of any Option Closing Date;, in form and substance reasonably satisfactory to them, from the Corporation’s independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information, including the financial information contained or incorporated by reference in the Registration Statement as identified by the Representative. Such letters shall also confirm that, with respect to the Corporation, they are independent accountants within the meaning of the published rules and regulations of the American Institute of Certified Public Accountants.
(ei) receipt of copiesPrior to the Closing Date [and any Option Closing Date], certified the Corporation shall have furnished to the Underwriters such further information, certificates and documents as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered Underwriters may reasonably request in connection with the execution and delivery offering of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing DateCapital Securities.
Appears in 1 contract
Conditions to Closing. The obligation of each Lender to enter into and This Agreement shall not become bound under this Agreement effective (and the other Financing Documents and, if applicable Lenders shall not be required to make any the initial Loans requested by Borrowers to be made on or issue any Letters of Credit) unless the Closing DateDate has occurred on or prior to July 31, shall be subject 2003 and the Company has furnished to the receipt by Administrative Agent each of each agreementthe following, document and instrument set forth on with sufficient copies for the closing checklist prepared by Agent or its counselLenders, each all in form and substance satisfactory to the Administrative Agent and the Lenders:
(1) Copies of the Certificate of Incorporation (or other comparable constituent document) of each Initial Loan Party together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of organization;
(2) Copies, certified by the Secretary or Assistant Secretary of each Initial Loan Party of its By-Laws (or other comparable governing document) and of its Board of Directors' resolutions (and required resolutions of other bodies) authorizing the execution of the Loan Documents;
(3) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Initial Loan Party which shall identify by name and title and bear the signature of the officers of such Initial Loan Party authorized to sign the Loan Documents (and, in the case of the Company, to make borrowings hereunder), upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the applicable Loan Party;
(4) A certificate, in form and substance satisfactory to the Administrative Agent, signed by the chief financial officer or treasurer of the Company, stating that on the Closing Date (both before and after giving effect to the Loans made and/or Letters of Credit issued thereon) all the representations in this Agreement are true and correct in all material respects (unless such other closing deliverables representation and warranty is made as of a specific date, in which case, such representation and warranty shall be true and correct in all material respects as of such date) and no Default or Unmatured Default has occurred and is continuing;
(5) An opening compliance certificate, substantially in the form of Exhibit H attached hereto and made a part hereof, signed by the Company's chief financial officer or treasurer, but solely demonstrating compliance with the provisions of Section 7.4 as of the end of the fiscal quarter ending May 30, 2003;
(6) Evidence satisfactory to the Administrative Agent that the Prior Credit Agreement has terminated and that all obligations, indebtedness and liabilities outstanding under the Prior Credit Agreement have been repaid in full and all liens (if any) granted thereunder shall have been released, or the Company has arranged for such termination, repayment and release from the proceeds of the initial Loans hereunder (in either case, as documented in a payoff letter in form and substance reasonably satisfactory to the Administrative Agent);
(7) Written money transfer instructions reasonably requested by the Administrative Agent, addressed to the Administrative Agent and signed by an Authorized Officer;
(8) Evidence satisfactory to the Administrative Agent that the Company has paid to the Administrative Agent, the Syndication Agent and the Arrangers the fees agreed to in each of the fee letters described in Section 2.14(C)(iii);
(9) The written opinions of the Company's and the Subsidiary Guarantors' U.S. counsel in the forms of the opinions attached hereto as Exhibit E, addressed to the Administrative Agent and the Lenders, in form and substance acceptable to the satisfaction Administrative Agent and its counsel;
(10) The written opinion of French counsel to Steelcase SAS, addressed to the Administrative Agent and the Lenders, in form and substance acceptable to the Administrative Agent and its counsel;
(11) A certificate, in form and substance satisfactory to the Administrative Agent, signed by the chief financial officer or treasurer of the following conditions precedentCompany, each to demonstrating that on the satisfaction Closing Date, (i) the total assets of Agent all Non-Obligor Subsidiaries do not exceed twenty-five percent (25%) of the Company's Consolidated Assets, determined as of the end of the Company's most recently completed fiscal year, and Lenders (ii) the total sales of all Non-Obligor Subsidiaries do not exceed twenty-five percent (25%) of the Company's Consolidated Sales, determined as of the end of the Company's most recently completed fiscal year (it being understood and their respective counsel agreed, however, that, in their sole discretion:
making such determination, (a) evidence twenty percent (20%) of the consummation total assets and total sales of Steelcase SAS shall be deemed to constitute total assets and total sales of a Non-Obligor Subsidiary and (b) total assets and total sales of each Non-Obligor Subsidiary and Steelcase SAS shall be determined only by reference to the total assets and total sales of such Non-Obligor Subsidiary or Steelcase SAS (and not on a consolidated basis for such Non-Obligor Subsidiary or Steelcase SAS) and shall exclude all offsetting debits and credits between such Non-Obligor Subsidiary or Steelcase SAS and its respective consolidated Subsidiaries and all equity investments in such consolidated Subsidiaries);
(12) A certificate, in form and substance satisfactory to the Administrative Agent, signed by an Authorized Officer of the transactions Company, (other than a) identifying and describing the funding ownership of the LoanSubsidiaries of the Company as of the Closing Date and (b) contemplated by identifying and attaching the Operative Documents Investment Policy of the Company as in effect on the Closing Date; and
(13) Such other documents as the Administrative Agent or any Lender or its counsel may have reasonably requested with at least two (2) Business Days' prior notice (unless the Company otherwise consents, such consent not to be unreasonably withheld or delayed), including, without limitation, the funding Guarantees and each other instrument, document or agreement reflected on the List of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared Closing Documents attached as of the Closing Date;
(e) receipt of copies, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page Exhibit F to this Agreement. Without in any way limiting the foregoing, this Agreement shall be deemed to have acknowledged receipt ofnot become effective unless and until it has been executed by the Company, the Administrative Agent and the Lenders, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved such party has notified the Administrative Agent by Agent, Required Lenders facsimile or Lenders, as applicable, on the Closing Dateelectronic transmission that it has taken such action.
Appears in 1 contract
Sources: Credit Agreement (Steelcase Inc)
Conditions to Closing. 7.1 Conditions to BFS's, BTI's and Shareholders' Obligations. The obligations of BFS, BTI and the Shareholders to effect the Closing are subject to the satisfaction of the following additional conditions on or before the Closing Date:
(a) The representations and warranties of the Company set forth in Article 4 of this Agreement will be true and correct in all material respects as of the date hereof and at and as of the Closing Date as though then made;
(b) The Company and SFSI shall have performed, in all material respects, each obligation of and agreement and complied with each Lender covenant to enter into be performed and become bound complied with by it under this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers prior to be made on the Closing Date;
(c) All consents by third party or governmental or regulatory agencies or otherwise that are required to be obtained by the Company or SFSI for the consummation of the transactions described herein will have been obtained;
(d) No action or proceeding before any court or governmental body will be pending or threatened wherein a judgment, shall decree, injunction or order would prevent any of the transactions described herein or cause such transactions to be subject declared unlawful or rescinded;
7.2 Conditions to the receipt by Agent Obligations of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory Company. The obligations of the Company to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and effect the Closing are subject to the satisfaction of the following conditions precedent, each to on or before the satisfaction of Agent and Lenders and their respective counsel in their sole discretionClosing Date:
(a) evidence The representations and warranties set forth in Article 2 and Article 3 of this Agreement will be true and correct in all material respects as of the date hereof and at and as of the Closing Date as though then made;
(b) BFS, BTI and the Shareholders shall have performed, in all material respects, each obligation and agreement and complied with each covenant required to be performed and complied with by them under this Agreement prior to the Closing Date, including but not limited to execution of all employment agreements and other agreements as described in Section 6.2 hereof, including, but not limited to, those to be executed by the persons set forth on Schedule 6.2.
(c) All consents by any third party or governmental or regulatory agencies or otherwise that are required to be obtained by BFS, BTI and the Shareholders for the consummation of the transactions described herein will have been obtained.
(other than the funding d) No action or proceeding before any court or governmental body will be pending or threatened wherein a judgment, decree, injunction or order would prevent any of the Loantransactions described herein or cause such transactions to be declared unlawful or rescinded;
7.3 Closing Deliveries By BFS, BTI and Shareholders. On the Closing Date, BFS, BTI and the Shareholders shall have delivered to the Company the following:
(a) contemplated by certificates executed on behalf of each of BFS, BTI and the Operative Documents including, without limitation, Shareholders stating that the funding conditions set forth in Sections 7.2(a) through (d) of any and all investments contemplated by the Operative Documentsthis Agreement have been satisfied;
(b) resolutions duly adopted by each of BFS's and BTI's Board of Directors authorizing and approving the payment Agreement and the execution, delivery and performance of all fees, expenses and other amounts due and payable under each Financing Documentthe Agreement;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence a certificate of any nature that has occurred that has had or could, either individually or in existence for each of BFS and BTI from the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt Secretary of State of the initial Borrowing Base CertificateState of Indiana, prepared as of dated not earlier than five days prior to the Closing Date;
(d) copies of the Articles of Incorporation of BFS and BTI certified as of a recent date by the Secretary of State of the State of Indiana;
(e) receipt of copies, certified as true, complete and correct by the Borrowing Representative, incumbency certificates of the final cardioCORE Acquisition Agreement, complete with officer(s) of BFS and BTI;
(f) a stock certificate of BFS for all schedules authorized shares of BFS;
(g) a stock certificate of BTI for all authorized shares of BTI;
(h) such other documents and exhibits thereto, and all material related documents executed and delivered actions as the Company may reasonably request in connection with the execution and delivery transactions described herein including the executed employment agreement of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, CB and the terms and conditions executed non-compete agreement of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing DateMB.
Appears in 1 contract
Sources: Merger Agreement (Syndicated Food Service International Inc)
Conditions to Closing. The following conditions are precedent to Purchaser's obligation of each Lender to enter into acquire the Property and become bound under this to deliver the Purchase Price (the "Conditions Precedent"). If any Conditions Precedent are not satisfied as determined by Purchaser in Purchaser's sole discretion, Purchaser may elect by written notice to Seller to terminate the Agreement and receive a refund of the other Financing Documents andDeposit, if applicable make applicable, the Infrastructure Deposit and the Option Deposits, if any. Upon such termination, neither party shall have any initial Loans requested by Borrowers to be made on the Closing Datefurther obligations hereunder except as provided in Sections 12, shall be subject to the receipt by Agent of each agreement16(b), document 16(g), 16(k) and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:16(l) hereof.
(a) evidence of the consummation of the transactions (This Agreement shall not have terminated pursuant to any other than the funding of the Loan) contemplated by the Operative Documents provision hereof, including, without limitation, the funding of any and all investments contemplated by the Operative Documents;Section 5 above.
(b) The physical condition of the payment Property shall be substantially the same on the day of all feesClosing as on the date of Purchaser's execution of this Agreement, expenses reasonable wear and tear and loss by casualty excepted (subject to the provisions of Section 11 below), and, as of the day of Closing, there shall be no litigation or administrative agency or other amounts due governmental proceeding of any kind whatsoever, pending or threatened, which after Closing would materially adversely affect the value of the Property or the ability of Purchaser to operate the Property in the manner in which it is currently being operated or the ability of Purchaser to construct and payable under each Financing Document;operate Purchaser's Project, and no proceedings shall be pending or threatened which could or would cause the redesignation or other modification of the zoning classification of, or of any buildings code requirements applicable to the Property or any portion thereof, which after Closing would materially adversely affect the value of the Property or the ability of Purchaser to operate the Property in the manner in which it is currently being operated or the ability of Purchaser to construct and operate Purchaser's Project.
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence Title Company shall be irrevocably and unconditionally committed to issue to Purchaser the Title Policy as described in Section 3(a) above (subject only to payment of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;its premiums therefor).
(d) the receipt All of the initial Borrowing Base Certificate, prepared as of the Closing Date;
(e) receipt of copies, certified as true, complete Seller's representations and warranties contained herein shall be true and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Date.
(e) Prior to the end of the Due Diligence Period Seller and Purchaser shall have agreed, in each party's reasonable discretion, upon the changes, if any, in the covenants, conditions, restrictions and easements which are to be recorded with respect to the Land at or prior to the Closing from the current form of that certain Declaration of Covenants, Conditions and Restrictions of Carson Valley Business Park as of December 8, 1993 (the "CC&Rs"), pr▇▇▇▇▇▇, however, that Purchaser shall only be subject to a maximum assessment (as such term is defined herein) amount under the CC&Rs of Two Thousand Dollars ($2,000) per year, for a period of five (5) years from the Closing Date. This Section 6(e) shall survive the Closing
(f) Promptly following the mutual execution of this Agreement and at least ten (10) business days prior to Closing, Seller, at Seller's cost, (i) shall file an appropriate and complete application with Douglas County for Douglas County's approval of parcel maps ("Parcel ▇▇▇▇") in form and ▇▇▇▇▇▇nce reasonably approved by Purchaser in order to subdivide the Property, the Remaining Parcel (if applicable, and the Option Land (as such term is defined herein) as separate legal parcels, (ii) shall diligently process such applications and (iii) shall otherwise exercise its best efforts to obtain Douglas County's approval of the Parcel Maps and to cause the Parcel ▇▇▇▇ ▇o be duly filed.
(g) During the Due Diligence Period, at Purchaser's Option, Purchaser shall acquire water and sewer rights for water and sewer utility services in capacities deemed by Purchaser, in Purchaser's sole discretion, to be sufficient to serve Purchaser's Project from Douglas County. In the event that Purchaser attempts to purchase suc▇ ▇▇▇▇▇s from Douglas County, Seller shall be obligated to diligently and actively ▇▇▇▇▇▇ Purchaser with the acquisition of such rights. In addition, upon the Closing, at no cost to Purchaser, Seller shall convey to Purchaser 19.89 acre feet of water rights, any additional water rights that Seller has the right to acquire, and approximately 2.87 equivalent domestic units of sewer rights pursuant to instruments and documents approved by Purchaser.
(h) Seller has performed all of its covenants hereunder.
Appears in 1 contract
Sources: Purchase Agreement (Starbucks Corp)
Conditions to Closing. (a) Conditions to the Obligations of the Company. The obligation obligations hereunder of each Lender the Company to enter into and become bound under consummate the transactions contemplated by this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be are subject to the receipt by Agent of each agreementfulfillment, document and instrument set forth on prior to or at the closing checklist prepared by Agent or its counselClosing, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(ai) evidence the accuracy of the consummation representations and warranties of the transactions (other than the funding Purchaser hereunder as of the Loan) contemplated by Closing Date, as the Operative Documents includingcase may be, without limitation, the funding of any as if such representations and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses warranties had been made on and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date;
(eii) receipt of copies, certified as true, complete and correct the performance by the Borrowing Representative, Purchaser of its obligations hereunder that are required to be performed at or prior to the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with Closing;
(iii) the execution and delivery of the cardioCORE Acquisition AgreementTransaction Documents by the Purchaser, all as executed which Transaction Documents shall, upon execution thereof by the Company, be in full force and delivered by all parties thereto, effect; and the terms execution and conditions delivery by the Purchaser of all of any other documents or instrument reasonably required to be so executed or delivered in order to consummate the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretiontransactions contemplated hereunder; and
(fiv) receipt no action or proceeding by Agent or before any court, administrative body or governmental agency shall have been instituted or threatened by a third party which seeks to enjoin, restrain or prohibit, or might result in damages in respect of, the Transaction Documents or consummation of evidence reasonably satisfactory to Agent the transactions contemplated by the Transaction Documents.
(v) the Company has obtained any and all consents or waivers of third parties that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered are necessary in connection with the execution, delivery and performance of the Transaction Documents and the consummation of the transactions contemplated thereby.
(b) Conditions to the Obligations of the Purchaser. The obligations hereunder of the Purchaser to consummate the transactions contemplated by this Agreement are subject to the fulfillment, prior to or at the Closing, of the following conditions precedent:
(i) the accuracy of the representations and warranties of the Company hereunder as of the Closing Date, as modified by the Company Disclosure Schedule, as if such representations and warranties had been made on and as of such dates;
(ii) the performance by the Company of its obligations hereunder that are required to be performed at or prior to the Closing;
(iii) the Company shall have provided the Purchaser with a payoff letter from WMS relating to the outstanding indebtedness of the Company owed to WMS along with a full release from WMS to the Company covering any claims WMS may have then or may have ever had against the Company relating to the indebtedness, all subject to the actual payment of any outstanding indebtedness owed to WMS, it being understood that the proceeds paid by the Purchaser to the Company for the Note shall be used to repay such indebtedness in full;
(iv) the execution and delivery of the cardioCORE Acquisition Agreement. Each LenderSecurity Agreements and the required UCC financing statements by the Company, which Security Agreements shall thereupon be in full force and effect;
(v) the execution and delivery of the Subordination Agreement and the required UCC financing statements by delivering its signature page the Company and/or WMS which Subordination Agreement shall thereupon be in full force and effect;
(vi) the receipt by the Purchaser of an opinion of counsel to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, the Company dated as applicable, on of the Closing DateDate in substantially the form of Exhibit A attached hereto;
(vii) no action or proceeding by or before any court, administrative body or governmental agency shall have been instituted or threatened by a third party which seeks to enjoin, restrain or prohibit, or might result in damages in respect of any Transaction Document or consummation of the transactions contemplated by any Transaction Document;
(viii) the Purchaser shall have received a certificate executed by an authorized officer of the Company confirming that the conditions set forth in Sections 7(b)(i), (ii) and (vii) have been duly satisfied.
Appears in 1 contract
Sources: Senior Secured Convertible Note Purchase Agreement (Ovation Products Corp)
Conditions to Closing. The obligation In addition to the conditions provided in other provisions of this Agreement, the parties' obligations to perform their undertakings provided in this Agreement, are each conditioned on the fulfillment of each Lender of the following which is a condition to enter into such party's obligation to perform hereunder (subject to such party's waiver in strict accordance with Section 9 below):
A. Not later than twenty (20) days after the date hereof, Seller shall deliver to Purchaser each of the following: (i) a copy of the existing as-built ALTA/ACSM survey of the Project (the "Survey") certified to Purchaser and become bound under the Title Company, including a certification that there have been no material changes with respect thereto since the date prepared; (ii) evidence (which can be in the form of a certificate of the surveyor in form and substance reasonably acceptable to Purchaser) that the Project is not in a 100 year flood plain, and (iii) a current title insurance commitment from Title Company for the Project (the "Title Commitment") together with legible copies of all exceptions appearing in such Title Commitment. Purchaser shall have ten (10) days following the later of receipt of the Title Commitment or the Survey to object in writing to any matter disclosed in the Survey and Title Commitment. Failure to object within the ten (10) day period shall be deemed approval of the matters set forth in the Title Commitment and Survey. All matters showing thereon which are approved or deemed approved by Purchaser shall be deemed "Permitted Exceptions." If Purchaser disapproves any matters in the Survey or Title Commitment, Seller may, but shall not be obligated to, cure such matters; but if Seller cannot cure such matters by 5:00 p.m. Central Standard time on the fifteenth (15th) day after receipt of Purchaser's written objection notice, Purchaser may elect either to terminate this Agreement by providing written notice of termination to Seller or to accept such matters as Permitted Exceptions; provided, however, Seller shall cause to be cured or insured over in a manner reasonably acceptable to Purchaser any monetary liens on the Project which were either voluntarily placed on the Project by Seller or which do not exceed $100,000 in the aggregate. Purchaser shall be deemed to have elected to terminate this Agreement if Purchaser does not notify Seller, in writing, by 5:00 p.m. Central Standard time on that fifteenth (15th) day, that Purchaser is electing to accept such matters as Permitted Exceptions.
B. As a condition to each party's obligation to perform hereunder, the due performance by the other of all undertakings and agreements to be performed by the other hereunder and the truth of each representation and warranty as set forth herein made pursuant to this Agreement by the other Financing Documents andat the Closing Date.
C. As a condition to Purchaser's obligation to perform hereunder (and not as a default by Seller), if applicable make any initial Loans requested by Borrowers to be made on there shall not have occurred between the date hereof and the Closing Date, inclusive, destruction of or damage or loss to the Project (whether or not covered by insurance proceeds) from any cause whatsoever which either materially affects the common areas of the Project or which costs more than One Million Dollars ($1,000,000) in the aggregate to repair; provided, however, that in the event of such destruction or damage, Purchaser may elect to proceed with the Closing in which case Seller shall assign to Purchaser at Closing any claims for proceeds from the insurance policies covering such destruction or damage (including any business interruption proceeds for the period after Closing) and shall credit Purchaser at Closing the amount of any deductibles thereunder. If the cost of repairing the destruction, damage or loss is less than One Million Dollars ($1,000,000) in the aggregate and does not materially affect the common areas of the Project, the parties shall proceed with the Closing as provided herein, the cost of repair shall be subject deducted from the Purchase Price, and Seller shall assign to Purchaser any business interruption proceeds for the period after Closing. Prior to the receipt end of the Inspection Period (defined below), as such Inspection Period may be extended pursuant to the terms hereof, Seller shall cause Purchaser to be added as an additional insured to Seller's business interruption insurance for the Project which insurance shall provide coverage against any business interruption at the Project for a minimum of one (1) year.
D. As a condition of Purchaser's obligation to perform hereunder (and not as a default by Agent Seller), Purchaser shall be satisfied in its sole and absolute discretion with all aspects of each agreementthe Project (including, document but not limited to, the physical and instrument set forth environmental condition of the Project); provided, however, if Purchaser does not notify Seller in writing by 5:00 p.m. Central Standard time on the closing checklist prepared date which is thirty (30) days from the Effective Date hereof (the "Inspection Period") that is not satisfied and that it terminates this Agreement, Purchaser shall be deemed to be satisfied with the condition of the Project. If Purchaser timely provides written notice of termination pursuant to the preceding sentence, this Agreement shall terminate and the ▇▇▇▇▇▇▇ Money shall be refunded to Purchaser, Purchaser shall have no further interest in this Agreement or the Project, and neither party shall have any further liability under this Agreement except as otherwise expressly provided for in this Agreement. Purchaser shall not be required to give its reasons for terminating this Agreement pursuant to this paragraph.
E. As a condition to Purchaser's obligation to perform hereunder (and not as a default by Agent Seller), that there shall not have occurred at any time or times on or before the Closing Date any taking or threatened taking of the Project or any part thereof or any interest or estate therein by condemnation, eminent domain or similar proceedings; provided, however, Purchaser may elect to waive such condition in which case Seller shall assign to Purchaser at Closing all of Seller's right, title and interest in and to any proceeds resulting from any such proceeding.
F. As a condition to Purchaser's obligation to perform hereunder (and not as a default by Seller), as of the Closing Date, all contracts and agreements affecting the Project, including the Project Agreements, shall be in full force and effect, unmodified and unwaived (except for terminations, modifications and/or waivers permitted hereunder or to which Purchaser consents), and in good standing and free from material default; provided, however, Seller covenants and agrees, and it shall be a condition to Purchaser's obligation to perform its counselundertakings hereunder, each that Seller shall terminate at its expense any existing management agreements and franchise agreements for the Project as of Closing.
G. As a condition to Purchaser's obligation to perform hereunder, Marriott shall have agreed with Purchaser prior to the end of the Inspection Period to enter into a replacement franchise agreement for the Project, effective as of the Closing, in form and substance satisfactory to AgentPurchaser in its sole discretion (the "New Franchise Agreement"); provided, and such other closing deliverables reasonably requested however, if Marriott has not agreed with Purchaser to enter into the New Franchise Agreement by Agent and Lendersthe end of the Inspection Period, and Purchaser may, upon written notice to Seller prior to the satisfaction end of the following conditions precedentInspection Period, each extend the Inspection Period by up to a maximum of thirty (30) days (the "First Extension Period") but solely for purposes of entering into the New Franchise Agreement with Marriott and for no other purpose. If Marriott has not agreed with Purchaser to enter into the New Franchise Agreement by the end of the First Extension Period, Purchaser may, upon written notice to Seller prior to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a) evidence end of the consummation First Extension Period, extend the Inspection Period by up to a maximum of an additional thirty (30) days (the "Second Extension Period") but solely for purposes of entering into the New Franchise Agreement with Marriott and for no other purpose provided Purchaser deposits the Second ▇▇▇▇▇▇▇ Money Deposit with the Title Company on or before the commencement of the transactions (other than Second Extension Period. If Marriott has not agreed with Purchaser to enter into the funding New Franchise Agreement by the end of the LoanSecond Extension Period, Purchaser may, upon written notice to Seller prior to the end of the Second Extension Period, extend the Inspection Period by up to a maximum of another additional thirty (30) contemplated days (the "Third Extension Period") but solely for purposes of entering into the New Franchise Agreement with Marriott and for no other purpose provided Seller shall have the right to terminate this Agreement at any time during the Third Extension Period on ten (10) days' prior notice to Purchaser unless Purchaser notifies Seller prior to the end of such ten (10) day period that it has entered into the New Franchise Agreement with Marriott and is waiving the condition set forth in this paragraph. If Purchaser has not notified Seller by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt end of the initial Borrowing Base CertificateInspection Period, prepared as of it may be so extended, that Purchaser has entered into the Closing Date;
(e) receipt of copiesNew Franchise Agreement with Marriott, certified as truethis Agreement shall automatically terminate, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition unless it has already been closed and consummated terminated in accordance with the cardioCORE Acquisition terms hereof prior thereto; and the ▇▇▇▇▇▇▇ Money shall be returned to Purchaser. Purchaser shall use good faith efforts to reach agreement with Marriott on the New Franchise Agreement provided the New Franchise Agreement is in substantially the same form as the Existing Franchise Agreement.
H. Seller covenants and agrees, and it shall be a condition to Purchaser's obligation to perform its undertakings hereunder, that from and after the date hereof, at all reasonable times, Purchaser (and its agents) shall be permitted access to the Project and to all books, records and reports relating to the Project for the purpose of inspecting same, and Purchaser (and its agents) shall have the right to photocopy any and all such books, records and information. All information relating to the Project made available to Purchaser shall be treated as confidential by Purchaser and its employees and agents. Purchaser (and its agents) shall also have the right to meet with the Operator of the Project (including key employees and consultants) to discuss any matters relating to the operation of the Project. Any entry by Purchaser and its agents on the Project shall be upon reasonable prior notice to Seller and while accompanied by a Seller representative and in a manner least disruptive to Seller's and its tenants' businesses being conducted at or from the Project, and Purchaser will indemnify and hold Seller harmless against any and all injuries, claims, losses, damages and expenses arising out of its performance of any such entry, inspection or other material related documents executed activities, and delivered Purchaser shall, at Purchaser's cost and expense, restore the Project to its condition as existed prior to the performance of such entry, inspection or other activities. The previsions of the preceding sentence shall survive termination of this Agreement.
I. As a condition to Purchaser's obligation to perform hereunder (and not as a default by Seller), no notices of any violations of any laws shall have been issued with respect to the Project prior to Closing, which have not been corrected prior to Closing;
J. Seller acknowledges that Purchaser intends to obtain all licenses necessary for the operation of the Project. To the extent necessary, Seller shall cooperate with Purchaser (provided, that Seller shall not be required to incur more than nominal cost or expense in connection therewith) to obtain the required approvals for such license, and the costs and expenses associated with Purchaser's efforts to obtain such licenses, including any costs and expenses incurred by Seller in connection therewith which are more than nominal, shall be paid by the execution Purchaser. It is expressly understood and delivery agreed that Purchaser's ability to obtain all necessary licenses for the Project is a condition precedent to the obligations of Purchaser to purchase the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page Project pursuant to this Agreement; provided, however, (i) Purchaser's right to terminate this Agreement as a result of Purchaser's inability to obtain an alcoholic beverage license for the Project shall be governed solely by the terms of Section 6(N) below, and (ii) Purchaser's right to terminate this Agreement as a result of Purchaser's inability to obtain any other licenses shall terminate thirty (30) days after the date hereof and Purchaser shall be deemed to have acknowledged receipt ofsatisfied itself that it can obtain all such other licenses if Purchaser does not terminate this Agreement within such thirty (30) day period. Purchaser agrees to use its best efforts to obtain the required licenses.
K. As a condition to Purchaser's obligation to perform hereunder, Purchaser shall have obtained approval from the board of trustees of its general partner for the transaction set forth herein on or before the expiration of the Inspection Period (which for purposes of this paragraph shall not include any extension periods as described in Paragraph 6(G) above). If Purchaser does not notify Seller by the end of the Inspection Period that Purchaser has not obtained such approval, this condition shall be deemed waived by Purchaser. If Purchaser so notifies Seller by the end of the Inspection Period that Purchaser has not obtained approval for the transaction set forth herein, this Agreement shall terminate and the ▇▇▇▇▇▇▇ Money shall be returned to Purchaser, and consented neither party shall have any further liability to one another hereunder except for those provisions that expressly survive the termination of this Agreement.
L. As a condition to Seller's and approvedPurchaser's obligations to perform hereunder, Seller shall have been able to obtain prior to the Closing Date any and all consents or approvals as may be required under the Project Agreements, in order to consummate the transactions contemplated by this Agreement. If Seller is unable to obtain such consents, Seller shall reimburse Purchaser, up to a maximum of $50,000, for one-half of Purchaser's out-of-pocket expenses incurred in connection with this Agreement and the purchase of the Project.
M. As a condition to Purchaser's obligation to perform hereunder, Seller shall have obtained and delivered to Purchaser estoppel certificates in the form attached hereto as Exhibit O from each Financing Documentof the parties to the Project Agreements other than the Architect and Construction Manager; and Seller shall use commercially reasonable efforts to obtain such certificates.
N. The obligations of Purchaser to consummate this transaction are contingent on Purchaser being satisfied, each additional Operative Document in its sole judgment, during the Inspection Period (which for purposes of this paragraph shall not include any extension periods as described in Paragraph 6(G) above), that all necessary approvals for the transfer to Purchaser of the Liquor License or the issuance to Purchaser of a new Liquor License have been or will be obtained, and each other documentthat immediately after the Closing Purchaser will be able to lawfully continue the sale of alcoholic beverages at the Licensed Premises during the pendency of such Liquor License transfer. If Purchaser determines that it will be unable to obtain the transfer or issuance of an acceptable Liquor License for the Premises, agreement and/or instrument or to lawfully continue the sale of alcoholic beverages at the Licensed Premises during the pendency of such Liquor License transfer, then Purchaser may terminate this Agreement by delivering written notice to the Seller during the Inspection Period or this contingency shall be waived. Seller agrees to execute and deliver any and all reasonable documents and to otherwise cooperate with Purchaser in all reasonable respects in order to accomplish the foregoing. Without limiting the foregoing, Seller shall
(i) execute and deliver to Purchaser (x) the required form of Consent to Transfer, (y) such documentation as is required to be approved by Agentname Purchaser as Seller's Manager under the Liquor License, Required Lenders including a Manager's Questionnaire, and to use Seller's liquor license after Closing, assuming Purchaser provides Seller with any necessary information which is not in Seller's possession or Lenderscontrol, and (z) such other documentation as applicable, on the Closing Date.Purchas
Appears in 1 contract
Sources: Purchase and Sale Agreement (Lasalle Hotel Properties)
Conditions to Closing. The Purchaser's obligation of each Lender to enter into purchase and become bound under this Agreement and pay for the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be Subordinated Notes is subject to the receipt by Agent of each agreementfulfillment to Purchaser's reasonable satisfaction, document and instrument set forth on prior to or at the closing checklist prepared by Agent or its counselClosing, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionconditions:
(a) evidence All of the consummation representations and warranties of the transactions (other than Authority contained in this Agreement shall be true and correct on the funding date hereof and on the Closing Date with the same force and effect as if made on and as of the Loandate hereof and the Closing Date, respectively, except that any representations and warranties that relate solely to a particular date or period shall be true and correct as of such date or period.
(b) The Authority shall have performed and complied with all agreements and conditions contained in this Agreement required to be performed or complied with by it prior to or at the Closing and at the time of the Closing no Default or Event of Default shall have occurred and be continuing.
(c) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, have a Material Adverse Effect; no action, suit, proceeding or investigation shall have been commenced and be pending against or affecting or, to the best knowledge of the Authority threatened against, the Authority before any court or governmental agency, body or administrative agency or authority that, if adversely determined, might result in a Material Adverse Effect; and no stop order shall have been issued preventing the issuance of the Subordinated Notes or which might have a Material Adverse Effect.
(d) Purchaser shall have received certificates, dated the Closing Date, signed by two members of the Management Board confirming, as of the Closing Date, the matters set forth in paragraphs (a), (b) and (c) of this Section 6.02.
(e) Purchaser shall have received on the Closing Date the opinion (satisfactory to Purchaser and Purchaser's counsel), dated the Closing Date of Hobbs, Straus, ▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Authority, addressed to Purchaser, to the effect that:
(i) The Authority is validly existing as an instrumentality of the Tribe and has all requisite power and authority to carry on its business as it is being conducted and as it is proposed to be conducted.
(ii) The Authority has all requisite power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated by the Operative Documents hereby, including, without limitation, the funding power and authority to issue, sell, deliver and perform its obligations under the Subordinated Notes as provided herein.
(iii) This Agreement has been duly and validly authorized, executed and delivered by the Authority and is the legally valid and binding agreement of the Authority enforceable against it in accordance with its terms, except as rights of indemnity may be limited by state and federal securities laws, and except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(iv) The Subordinated Notes have been duly and validly authorized for issuance and sale to Purchaser by the Authority pursuant to this Agreement and are the legally valid and binding obligations of the Authority, enforceable against the Authority in accordance with their terms and entitled to the benefits hereof, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(v) No registration under the Securities Act of the Subordinated Notes is required for the sale thereof to Purchaser as contemplated hereby assuming (i) Purchaser is an "accredited investor" as defined under the Securities Act, (ii) the absence of general solicitation in connection with the sale of the Subordinated Notes; and (iii) the accuracy of the Authority's representations in Article II.
(vi) None of (A) the execution, delivery or performance by the Authority of this Agreement, (B) the issuance, sale and performance by the Authority of the Subordinated Notes or (C) the transactions contemplated by this Agreement, violate, conflict with or constitute a breach of any of the terms or provisions of, or a default under (or an event that with notice or the lapse of time, or both, would constitute a default), or require consent under, or result in the imposition of a lien or encumbrance on any properties of the Authority or an acceleration of any indebtedness of the Authority pursuant to, (i) the governing instruments of the Authority, (ii) any bond, debenture, note, indenture, mortgage, deed of trust or other agreement or instrument to which the Authority is a party or by which the Authority is a party or by which it or its property is or may be bound, (iii) any statute, rule or regulation, known to such counsel, applicable to the Authority or its assets or properties or (iv) any judgment, order or decree of any court or governmental agency, body or administrative agency or authority having jurisdiction over the Authority or its assets or properties. Except as such as have been obtained or made, no consent, approval, authorization or order of, or filing, registration, qualification, license or permit of or with, any court or governmental agency, body or administrative agency or authority is required for (1) the execution, delivery and all investments performance by the Authority of this Agreement, (2) the issuance, sale and performance by the Authority of the Subordinated Notes or (3) the transactions contemplated by this Agreement, except such as have been obtained and made under the Operative Documents;Securities Act, and state securities or "blue sky" laws and regulations.
(bvii) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there No action has been taken and no developmentstatute, eventrule, actregulation or order has been enacted, condition adopted or occurrence issued by any governmental agency that prevents the issuance of the Subordinated Notes; no injunction, restraining order or order of any nature by a federal, state or tribal court of competent jurisdiction has been issued that prevents the issuance of the Subordinated Notes to Purchaser; and every request of any securities authority or agency of any jurisdiction for additional information has occurred that has had or could, either individually or been complied with in the aggregate, reasonably be expected to have a Material Adverse Effect;all material respects.
(dviii) The Authority is not, and after the receipt sale of the initial Borrowing Base Certificate, prepared as Subordinated Notes will not be (i) an "investment company" or a company "controlled" by an "investment company" within the meaning of the Closing Date;Investment Company Act, or analogous foreign laws and regulations, or (ii) a "holding company" or a "subsidiary company" or an "affiliate" of a holding company within the meaning of the Public Utility Holding Company Act of 1935, as amended, or analogous foreign laws and regulations.
(ef) receipt of copiesThe Authority shall cause such additional opinions to be issued as may be reasonably requested by Purchaser, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete such additional opinions to be consistent with all schedules and exhibits thereto, and all material related documents executed and those opinions delivered in connection with the execution and delivery sale of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and Senior Secured Notes.
(g) The Authority shall have consummated the sale of the Senior Secured Notes on substantially the terms set forth and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel described in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered certain Offering Memorandum dated September 21, 1995 distributed in connection with the execution offer and delivery sale of the cardioCORE Acquisition Agreement. Each LenderSenior Secured Notes.
(h) Purchaser shall have received an opinion (reasonably satisfactory to Purchaser), by delivering its signature page dated the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ counsel to this AgreementPurchaser, covering such matters as are customarily covered in such opinions.
(i) The Authority shall be deemed to have acknowledged receipt ofpaid the fees, expenses and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument disbursements required to be approved by Agentpaid pursuant hereto, Required Lenders including, without limitation, the fees and expense set forth in Section 13.01, which are reflected in statements rendered prior to or Lenders, as applicable, on the Closing Date.
(j) The Authority shall cause such additional conditions to be satisfied as may be reasonably requested by Purchaser, such additional conditions to be consistent with those conditions to be satisfied in connection with the sale of the Senior Secured Notes.
Appears in 1 contract
Sources: Note Purchase Agreement (Waterford Gaming Finance Corp)
Conditions to Closing. 10.1 Conditions Precedent to Obligations of Purchaser. The obligation obligations of each Lender Purchaser to enter into and become bound under consummate the Contemplated Transactions as provided by this Agreement and is subject to the other Financing Documents andfulfillment, if applicable make any initial Loans requested by Borrowers on or prior to be made on the Closing Date, shall be subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each (any or all of which may be waived by Purchaser in whole or in part to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:extent permitted by applicable Law):
(a) evidence the representations and warranties of Seller set forth in this Agreement shall be true and correct (without giving effect to any materiality or Material Adverse Effect qualifiers set forth therein) at and as of the consummation Closing, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct on and as of such earlier date) and Purchaser shall have received a certificate signed by an authorized officer of Seller, dated the transactions (other than Closing Date, to the funding of foregoing effect; provided, however, that in the Loanevent any such representation or warranty has been breached the condition set forth in this Section 10.1(a) contemplated by shall nevertheless be deemed satisfied unless the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;
(b) the payment effect of all fees, expenses such breaches of representations and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or warranties taken together result in the aggregate, reasonably be expected to have a Material Adverse Effect;
(db) Seller shall have performed and complied in all material respects with all obligations and agreements required in this Agreement to be performed or complied with by it prior to the receipt Closing Date and Purchaser shall have received a certificate signed by an authorized officer of the initial Borrowing Base CertificateSeller, prepared as of dated the Closing Date, to the forgoing effect; provided, however, that the condition set forth in this Section 10.1(b) shall be deemed satisfied unless all such failures to so perform or comply taken together result in a Material Adverse Effect;
(c) Seller shall have delivered, or caused to be delivered, to Purchaser all of the items set forth in clauses (a) through (s) of Section 4.2;
(d) Purchaser shall have received the proceeds of the Financing on terms no less favorable to Purchaser than those set forth in the Commitment Letter;
(e) receipt of copies, certified as true, complete Seller shall have delivered evidence reasonably acceptable to Purchaser that the Business is conditionally or otherwise accredited by JCAHO;
(f) Seller and correct HHS shall have entered into the Medicare Agreement contemplated by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits theretoSection 8.18(a), and all material related documents executed if the State of New York (or an applicable Governmental Body) and delivered in connection with Purchaser shall be ready, willing and able to entered into the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and Medicaid Agreement on the terms and conditions of all of contemplated by Section 8.18(b), Seller shall have entered into the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretionMedicaid Agreement; and
(fg) receipt by Agent of evidence Seller shall have provided to Purchaser reasonably satisfactory evidence that all of Seller’s rights and interest in the Heart Institute will be transferred to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing DatePurchaser at Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement
Conditions to Closing. The No obligation of each Lender to enter into and become bound under contained in this Agreement and the other Financing Loan Documents and, if applicable make to lend or disburse money or to indemnify Borrower or any initial Loans requested by Borrowers other Person or otherwise to be made on the Closing Date, take any action or assume any existing obligation of another Person shall be subject deemed binding on Lender until each of the conditions set forth in this Section 3.1
(a) is performed to the receipt by Agent satisfaction of each agreementLender and Lender has received the following documents, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each all in form and substance satisfactory to AgentLender:
(i) Lender and its counsel shall have received copies of each Material Agreement (including without limitation the O&M contract between the O&M Operator and each Project Owner), and such other closing deliverables reasonably requested by Agent shall have reviewed and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel approved (in their sole discretion:) the form, terms, conditions, substance and structure thereof;
(aii) evidence Lender shall have received a review and analysis satisfactory to Lender (in its sole discretion) by the Independent Engineer with respect to relevant technical aspects of the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents Projects including, without limitation, existing environmental damage and liabilities, if any, operation and maintenance costs, historical and projected availability and useful life of each Project, capabilities of the funding O&M Operator, Borrower's ability to perform under the Project Documents, projected operation and maintenance costs, maintenance plans and schedules, terms of Project Documents, Permits, net capacity degradation (if any), the Project's ability to comply with Permit conditions and any and all investments contemplated by the Operative Documentsother technical issues Lender may request;
(biii) Lender shall have received delivery of reference Pro Formas on each Project and in aggregate for all Projects for a period extending out twenty (20) years from the payment Closing Date or one hundred thirty-three percent (133%) of all feesthe term of the Senior Loan as determined by the Pro Forma, expenses which shall incorporate the results of due diligence and other amounts due the reports of Lender's counsel and payable under each Financing Documentthe Independent Engineer and the terms and conditions imposed by the Project Documents, showing annual Net Operating Cash available for debt service sufficient (in Lender's sole discretion) to support the maximum amount of the Senior Loan (assuming a 1.4 to 1 annual loan coverage ratio);
(civ) Since December 31Lender and its advisors shall have completed their review of all Permits relating to the Projects, 2011, there has been no development, event, act, condition or occurrence of any nature Borrower shall have accomplished all items on the regulatory compliance action plan prepared by the Independent Engineer that has occurred that has had or could, either individually or in the aggregate, reasonably be expected were required to have a Material Adverse Effectbeen accomplished on or before the Closing Date, and all such Permits and accomplished items shall be satisfactory to Lender (in its sole discretion) and, where applicable, in full force and effect;
(dv) Lender shall be satisfied in its sole discretion that (A) Borrower's and the receipt Projects' operations comply, in all respects deemed material by Lender, with all applicable Environmental Laws, (B) Borrower's and the Projects' operations are not subject to any federal or state investigation evaluating whether remedial action involving any expenditure deemed material by Lender is needed to respond to any release of any Hazardous Material and (C) none of Borrower or any Project have any contingent liabilities deemed material by Lender in connection with the release of any Hazardous Material. Lender shall be satisfied (in its sole discretion) with the results of the initial Borrowing Base Certificateenvironmental audit of each Project;
(vi) Lender shall have received evidence satisfactory to Lender, prepared in its sole discretion, that Lender has a valid and perfected first priority Lien in the Borrower Collateral, including, without limitation, Form UCC-3 assignment or termination statements relating to the Prior Liens executed and in due form for filing. Borrower shall have made arrangements satisfactory to Lender that all Prior Liens will be discharged with the proceeds of the Initial Disbursement or assigned to Lender and all notes and letters of credit related thereto will be paid in full and canceled or purchased by Lender. Lender shall have received UCC, federal and state tax lien, judgment lien, bankruptcy, court and title search reports listing all effective financing statements and other documents that name Borrower or the Affiliates as debtors and that are filed in the jurisdictions in which the Borrower Collateral is located, the jurisdictions of incorporation of Borrower and the Affiliates and in each jurisdiction where Borrower or any Affiliate maintains an office;
(vii) Borrower shall have paid the Closing Costs in immediately available funds;
(viii) Borrower shall deliver or cause to be delivered to Lender the documents listed below, duly executed (except the Disbursement Instructions), in form and substance satisfactory to Lender and in quantities designated by Lender:
(A) This Agreement;
(B) The Notes and the Intercreditor Agreement;
(C) The Security Agreement, the Security Assignment Documents and the other Security Documents not listed below;
(D) Drafts of the Disbursement Instructions (Borrower having thirty (30) days after the Closing Date to deliver to Lender fully executed originals of the Disbursement Instructions);
(E) The Pledged Interests, including without limitation stock certificates representing all issued and outstanding shares of capital stock of Fulcrum, Inc., together with undated stock powers relating to such certificates executed in blank;
(F) The Pledge Agreements;
(G) The Assignments, if any;
(1) A certificate duly executed as of the Closing DateDate by an Authorized Officer of Borrower certifying that (x) all representations and warranties made by Borrower under the Loan Documents are true as though made on and as of such date, (y) all conditions to the obligations of Lender to make the Loan pursuant to this Section 3.1(a) have been fully satisfied or expressly waived in writing, and (z) no Default or Event of Default exists or will result from such closing or making of the Loans and (2) certificates duly executed as of the Closing Date by an Authorized Officer of each Affiliate certifying that all representations and warranties made by such Affiliate under the Loan Documents to which it is a party are true as though made on and as of such date;
(eI) receipt Copies of copies(1) the Partnership Agreement of Borrower, certified as true, complete and correct of the Closing Date by the Borrowing RepresentativeSecretary or other appropriate officer of a general partner of Borrower, (2) resolutions and any other documents evidencing all action taken by each general partner of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with Borrower to authorize the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition this Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other documentLoan Document to which Borrower is a party, agreement and/or instrument required such documents to be approved by Agent, Required Lenders or Lenders, certified as applicable, on of the Closing Date.Date by the Secretary or other appropriate officer of
Appears in 1 contract
Conditions to Closing. The obligation of each No Lender shall be obligated to enter into make any Advance hereunder, nor shall any Lender, the Administrative Agent or the Collateral Agent be obligated to take, fulfill or perform any other action hereunder, until the following conditions have been satisfied, in the sole discretion of, or waived in writing by the Administrative Agent:
(a) Each Transaction Document shall have been duly executed by, and become bound under this Agreement delivered to, the parties thereto, and the Administrative Agent shall have received such other Financing Documents anddocuments, if applicable make any initial Loans requested instruments, agreements and legal opinions as the Administrative Agent shall reasonably request in connection with the transactions contemplated by Borrowers to be made on the Closing Date, shall be subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counselthis Agreement, each in form and substance satisfactory to the Administrative Agent;
(b) The Administrative Agent shall have received satisfactory evidence that each of the Seller, the Borrower and such other closing deliverables reasonably requested by Agent the Collateral Manager has obtained all required consents and Lenders, and approvals of all Persons to the satisfaction execution, delivery and performance of this Agreement and the following conditions precedent, each other Transaction Documents to the satisfaction of Agent which it is a party and Lenders and their respective counsel in their sole discretion:
(a) evidence of the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Documenthereby or thereby;
(c) Since December 31The Seller, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or the Collateral Manager and the Borrower shall each have delivered to the Administrative Agent a certificate as to whether such Person is Solvent in the aggregate, reasonably be expected to have a Material Adverse Effectform of Exhibit C;
(di) The Borrower shall have delivered to the Administrative Agent a certification that no Default, Event of Default or Change of Control with respect to the Borrower has occurred, (ii) the receipt Collateral Manager shall have delivered to the Administrative Agent a certification that no Default, Event of Default or Change of Control with respect to the initial Borrowing Base CertificateCollateral Manager or Collateral Manager Termination Event has occurred and (iii) the Seller shall have delivered to the Administrative Agent a certification that no Default, prepared as Event of Default or Change of Control with respect to the Closing DateSeller has occurred;
(e) receipt of copies, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Date.
Appears in 1 contract
Sources: Loan and Security Agreement (Kayne Anderson BDC, Inc.)
Conditions to Closing. The obligation of each the Lender to enter into and become bound under this Agreement and close the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, Loan (“Loan Closing”) shall be subject to the receipt by Agent prior or simultaneous occurrence or satisfaction of each agreementof the following conditions:
(a) Borrower shall have executed (or caused to be executed) and delivered to Lender each of the Security Documents, document and instrument set forth all other requirements of Lender shall have been satisfied;
(b) Lender shall have received and approved the Ground Lease, dated effective April 4, 2017, executed by 1892 ▇▇▇▇▇ Crossing, Ltd., as Landlord, and by Borrower, as Tenant, (the said Ground Lease, and any renewals, extensions, modifications, restatements and replacements thereof, and each “Separated Lease” and any “New Lease” as therein defined, as evidenced by a Memorandum of Ground Lease recorded in Volume 13953, Page 112 of the Official Public Records of Brazos County, Texas, is herein referred to as the “Ground Lease”);
(c) Lender shall have received and approved the Lease Agreement dated effective April 4, 2017 between Borrower, as Landlord, and HEB Grocery Company, LP, as Tenant, and any renewals, extensions, modifications, restatements and replacements thereof (the “HEB Lease”);
(d) Borrower shall provide Lender with evidence that all necessary action on the closing checklist part of Borrower and Stratus has been taken with respect to the execution and delivery of this Agreement, the Security Documents and the consummation of the transactions contemplated hereby and thereby, so that this Agreement and all of the other Security Documents shall be valid and binding upon Borrower and each other person or entity executing and delivering any of the Security Documents. Such evidence shall include certified organizational documents, certified resolutions, certificates of incumbency and Certificates of Existence and Good Standing for the Borrower, Stratus and each such other entity as applicable;
(e) Lender shall have obtained, at Borrower's expense, (i) an appraisal of Borrower’s leasehold estate in the Land and the Improvements by an appraiser acceptable to Lender, and Lender shall have completed a review of such appraisal and approved it, and (ii) an environmental site assessment of the Land prepared by Agent consultants and with results acceptable to Lender;
(f) Lender shall have received, at Borrower's expense, the unconditional commitment from a title insurance company acceptable to Lender for the issuance of a loan policy of title insurance in the full amount of the Loan, insuring the lien of the Deed of Trust as a first and prior lien upon Borrower’s leasehold estate in the Land, and containing no exceptions except for those approved by Lender, in its reasonable discretion;
(g) Borrower shall have furnished Lender with (i) a final subdivision plat of the Land approved by the City of College Station and duly filed in the appropriate official plat records in the office of the Brazos County Clerk (the “Plat”), (ii) a current survey of the Land, prepared by a registered professional land surveyor or its a licensed engineer, containing a metes and bounds perimeter description of the Land, showing the location of all easements and all other matters of record, certifying that no improvements encroach upon any easements or other encumbrances affecting the Land, certified to Lender, and otherwise in a form approved by Lender, (iii) evidence that no portion of the Improvements will not be constructed in, a flood hazard area, (iv) evidence that the Land has been properly zoned for the Project, and (v) evidence that all utilities are available to service the Project (other than utility facilities that are to be constructed as part of the Project in accordance with the Budget);
(h) Borrower shall have furnished to Lender customer identification information, verification and such other information and supporting documentation regarding Borrower, Stratus and each person with authority or control with respect to Borrower, as Lender shall reasonably require for purposes of complying with the provisions of the Bank Secrecy Act (31 U.S.C. 5311 et. seq.), as amended by the USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56), and Lender's policies and procedures implemented in accordance therewith;
(i) Borrower shall have furnished Lender with a geotechnical survey or report of the Land, which survey or report shall have been performed and prepared by consultants acceptable to Lender and shall be acceptable to Lender in all respects;
(j) Borrower shall have furnished Lender with evidence that the following insurance policy is in force: commercial general liability insurance, in form and amounts, and issued by an insurer reasonably satisfactory to Lender, and naming the Lender as an additional insured;
(k) Lender shall have reviewed and approved in advance the Borrower's settlement statement for the Loan prepared by Heritage Title Company of Austin, Inc. (▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Senior Vice President), as the closing agent for the Loan;
(l) Lender shall have received an opinion letter from Borrower’s legal counsel, each ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, PLLC, in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a) evidence of the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative DocumentsLender;
(bm) Borrower shall have established with Lender a demand deposit account through which payments for costs of construction of the payment of all fees, expenses and other amounts due and payable under each Financing DocumentImprovements shall be made (the “Construction Account”);
(cn) Since December 31Lender shall have received and approved an Acknowledgement of Leasehold Mortgage, 2011signed by the lessor under the Ground Lease and by Borrower, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected form and substance satisfactory to have a Material Adverse EffectLender;
(do) the receipt of the initial Borrowing Base CertificateLender shall have received a Subordination, prepared as of the Closing Date;
(e) receipt of copiesNon-Disturbance and Attornment Agreement signed by, certified as trueBorrower, complete HEB Grocery Company, LP and correct by the Borrowing RepresentativeLender, of the final cardioCORE Acquisition Agreement, complete with all schedules in form and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be substance satisfactory to Agent and Lenders and their respective counsel in their sole discretionLender; and
(fp) receipt Lender shall have received a current estoppel certificate confirming the status of the HEB Lease, signed by Agent of evidence reasonably HEB Grocery Company, LP, in form and substance satisfactory to Agent Lender. Lender acknowledges and agrees that (i) the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery Plat will not include separate platted lots for all of the cardioCORE Acquisition AgreementBuild to Suit Pads and the Ground Lease Pads, and (ii) Borrower anticipates amending the Plat from time to time to cause one or more of the Build to Suit Pads and the Ground Lease Pads to be separate platted lots (each referred to as a “Plat Amendment”). Each Plat Amendment is subject to Lender’s review and approval, which approval will not be unreasonably withheld. Lender will execute each such Plat Amendment or such other consent or subordination as is required by delivering its signature page applicable governmental authorities in order to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Dateapprove a Plat Amendment.
Appears in 1 contract
Sources: Construction Loan Agreement (Stratus Properties Inc)
Conditions to Closing. The obligation Underwriters have entered into this Purchase Agreement in reliance upon the representations and warranties of each Lender to enter into the County and become bound the District contained herein and the performance by the District and the County of their respective obligat ions hereunder, both as of the date hereof and as of the date of Closing. The Underwriters’ obligat ions under this Purchase Agreement are and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be subject subject, at the option of the Underwriters, to the receipt by Agent of each agreement, document and instrument set forth on following further conditions at the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionClosing:
(a) evidence The representations and warranties of the consummation of County and the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably District contained herein shall be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date;
(e) receipt of copies, certified as true, complete and correct at the date hereof and at and as of the Closing, as if made at and as of the Closing, and the statements made in all certificates and other documents delivered to the Underwriters at the Closing pursuant hereto shall be true, complete and correct on the date of the Closing; and the County and the District shall be in compliance with each of the respective agreements made by them in this Purchase Agreement.
(b) At the time of the Closing, (i) the District Resolution, this Purchase Agreement, the Continuing Disclosure Certificate (collectively, the “District Documents”) and the County Documents shall be in full force and effect and the Resolutions and the Official Statement shall not have been amended, modified or supplemented except as may have been agreed to in writing by the Borrowing RepresentativeUnderwriters; (ii) all actions under the Bond Law which, in the opinion of Bond Counsel, shall be necessary in connection with the transactions contemplated hereby, shall have been duly taken and shall be in full force and effect; (iii) the County and the District shall have adopted, and there shall be in full force and effect such additional resolutions, agreements, opinions and certificates (including such certificates as may be required by regulations of the final cardioCORE Acquisition AgreementInternal Revenue Service in order to establish the tax-exempt character of the interest on the Bonds), complete with all schedules which resolutions, agreements, opinions and exhibits theretocertificates shall be satisfactory in form and substance to Bond Counsel to the District and to the Underwriters, and all material related documents executed there shall have been taken in connection therewith and delivered in connection with the execution and delivery of the cardioCORE Acquisition AgreementBonds all such actions as shall, all as executed and delivered by all parties theretoin the reasonable opinion of each, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered necessary in connection with the execution and delivery transactions contemplated hereby; (iv) all actions under the Resolutions which, in the opinion of Bond Counsel to the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this AgreementDistrict, shall be deemed to necessary in connection with the transactions contemplated hereby, shall have acknowledged receipt ofbeen duly taken and shall be in full force and effect; (v) the Bonds shall have been duly authorized, executed and consented to delivered; and approved, each Financing Document, each additional Operative Document (vi) the District and each other document, agreement and/or instrument the County shall perform or have performed all of their respective obligations required under or specified in the District Documents and the County Documents to be approved performed at or prior to the Closing.
(c) No decision, ruling or finding shall have been entered by Agentany court or governme ntal authority since the date of this Purchase Agreement (and not reversed on appeal or otherwise set aside), Required Lenders or Lendersto the best knowledge of the County or the District, be pending (in which service of process has been completed against the County or the District) or threatened which has any of the effects described in Section 7(e) or Section 8(f) hereof or contests in any way the completeness or accuracy of either the Preliminary Official Statement or the Official Statement.
(d) The Underwriters shall have the right to cancel their obligation to purchase the Bonds if, between the date of this Purchase Agreement and the Closing, the market price or marketability of the Bonds shall be materially adversely affected, in the reasonable judgment of the Representative, by the occurrence of any of the following:
(1) an event shall occur which makes untrue or incorrect in any material respect, as applicableof the time of such event, any statement or information contained in the Officia l Statement or which is not reflected in the Official Statement but should be reflected therein in order to make the statements contained therein not misleading in any material respect and, in either such event, the District refuses to permit the Official Statement to be supplemented to supply such statement or information or the effect of the Officia l Statement as so supplemented is, in the judgment of the Representative, to materia lly adversely affect the market for the Bonds or the sale, at the contemplated offering prices (or yields), by the Underwriters of the Bonds;
(2) legislation enacted by the Congress of the United States, or by the legislature of the State, or introduced in the Congress or recommended for passage by the President of the United States, or a decision rendered by a court of the United States or the State or by the United States Tax Court, or an order, ruling, regulation (final, temporary or proposed) or official statement issued or made: (i) by or on behalf of the Closing Date.United States Treasury Department, or by or on behalf of the Internal Revenue Service or other federal or State authority, which would have the purpose or effect of changing, directly or indirectly, the federal income tax consequences or State tax consequences of interest on obligations of the general character of the Bonds in the hands of the holders thereof;
(3) an order, decree or injunction of any court of competent jurisdiction, or any order, ruling or regulation of the Securities and Exchange Commission, is issued or made with the purpose or effect of prohibiting the issuance, offering or sale of the Bonds as contemplated hereby or legislation has been enacted, or a bill favorably reported for adoption, or a decision by any court rendered, or a ruling, regulation, proposed regulat ion or official statement by or on behalf of the Securities and Exchange Commission or other governmental agency having jurisdiction of the subject matter has been made or issued, to the effect that the Bonds or obligations of the general character of the Bonds of the District or the County or of any similar body of the type contemplated herein are not exempt from the registration, qualification or other requirements of the Securities Act as amended and then in effect, or that the Resolutions are not exempt from qualificatio n under the Trust Indenture Act of 1939, as amended and as then in effect;
(4) legislation is introduced in or enacted (or resolution passed) by the Congress or an order, decree, or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary, or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that obligat ions of the general character of the Bonds, including any or all underlying arrangements, are not exempt from registration under or other requirements of the Securities Act of 1933, as amended, or that the Bond Resolution is not exempt from qualificatio n under or other requirements of the Trust Indenture Act of 1939, as amended, or that the issuance, offering, or sale of obligations of the general character of the Bonds, including any or all underlying arrangements, as contemplated hereby or by the Official Statement or otherwise, is or would be in violation of the federal securities law as amended and then in effect;
(5) there shall have occurred any (i) declaration by the United States of a national or international emergency or war, (ii) outbreak or escalation of (A) hostilit ies,
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to Closing. The obligation Unless waived by the Managers, the several obligations of each Lender the Underwriters hereunder are subject to enter into the accuracy of the representations and become bound under this warranties on the part of the Company contained herein as of the date of the Underwriting Agreement and the other Financing Documents and, Closing Date (as if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall ) and the performance by the Company of all the obligations to be subject performed by it under this Agreement on or prior to the receipt by Agent of each agreement, document Closing Date and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionconditions:
(a) evidence Subsequent to the Applicable Time and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the consummation possible change, in the rating accorded the Company or any of the transactions (other than the funding securities of the LoanCompany by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) contemplated by of the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;Exchange Act.
(b) No stop order suspending the payment effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission, and there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business, properties or operations of the Company and its consolidated subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus, that, in the judgment of the Managers, is material and adverse and that makes it, in the judgment of the Managers, impracticable or inadvisable to market or deliver the Offered Securities on the terms and in the manner contemplated in the Time of Sale Prospectus; and the Managers shall have received, on the Closing Date, a certificate, dated the Closing Date and signed by either the chief executive officer or chief financial officer of the Company, to the foregoing effect. Such certificate will also provide that the representations and warranties of the Company contained herein are true and correct as of the Closing Date and that the Company has complied with all fees, expenses agreements and other amounts due and payable under each Financing Document;satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date. The officer making such certificate may rely upon the best of his knowledge as to proceedings threatened.
(c) Since December 31The Managers shall have received on the Closing Date an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇, 2011Vice President, there General Counsel and Corporate Secretary of the Company (or another lawyer of the Company reasonably satisfactory to the Underwriters), dated the Closing Date, addressed to the Managers to the effect (as applicable) that:
(i) each of the Company and Kansas Gas and Electric Company (the “Principal Subsidiary”) has been no developmentduly incorporated, eventis validly existing as a corporation in good standing under the laws of the State of Kansas and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification (except where the failure to so qualify would not have a material adverse effect upon the business or financial condition of the Company and its subsidiaries, actas a whole);
(ii) all of the issued shares of capital stock of the Principal Subsidiary have been duly and validly authorized and issued, condition are fully paid and non-assessable, and (except for directors’ qualifying shares and except as otherwise set forth in the Time of Sale Prospectus and the Prospectus) are owned directly and indirectly by the Company, free and clear of all liens, encumbrances, equities or occurrence claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that he believes that both the Managers and he are justified in relying upon such opinions and certificates);
(iii) the Company has an authorized capitalization as set forth in the Time of Sale Prospectus and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iv) each of the indenture dated as of August 1, 1998 (the “Senior Indenture”) between the Company and Deutsche Bank Trust Company Americas, as successor to Bankers Trust Company, as trustee (the “Senior Debt Trustee”), the indenture to be dated as of a date indicated in a relevant prospectus supplement (the “Subordinated Indenture”) between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Subordinated Debt Trustee”), the Mortgage and Deed of Trust, dated July 1, 1939, between the Company and The Bank of New York Mellon Trust Company, N.A., as successor to ▇▇▇▇▇▇ Trust and Savings Bank, as trustee (the “Mortgage Bond Trustee”), as amended and supplemented by forty-five supplemental indentures supplemental thereto, in addition to the forty-second supplemental (reopening) indenture (such Mortgage and Deed of Trust, as heretofore amended and supplemented, the “Mortgage”) and as to be amended and supplemented by the supplemental indenture, to be dated as of a date indicated in a relevant prospectus supplement (the “Supplemental Indenture”) (the Mortgage, as so amended and supplemented by such supplemental indentures, the “Amended Mortgage”), has been duly authorized, executed and delivered by the Company;
(v) assuming the due authorization, execution and delivery by the other parties thereto, the Amended Mortgage constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability;
(vi) the Amended Mortgage has been duly recorded and filed in each place in which such recording or filing is required to protect and preserve the lien of the Amended Mortgage, and all taxes and recording or filing fees required to be paid in connection with the execution, recording or filing of the Amended Mortgage have been duly paid;
(vii) the Company has good and sufficient title to, or a satisfactory easement in, all the real property, and has good and sufficient title to all the personal property described in the Amended Mortgage as owned by it and subject to the lien of the Amended Mortgage, except any which may have been released from the lien thereof pursuant to the provisions thereof, subject only to (a) minor leases and liens of judgments not prior to the lien of the Amended Mortgage, which, in such counsel’s opinion, do not interfere with the Company’s business, (b) minor defects, irregularities and deficiencies in titles of properties and rights-of-way which, in such counsel’s opinion, do not materially impair the use of such property and rights of- way for the purposes for which they are held by the Company, and (c) other permitted liens as defined in the Amended Mortgage; subject to the qualifications set forth in this Section 4(c)(vii), the Amended Mortgage constitutes a valid, direct first mortgage lien upon said properties and upon all franchises owned by the Company, which properties and franchises include all the physical properties and franchises of the Company (other than classes of property expressly excepted in the Amended Mortgage); all physical properties and franchises (other than classes of property expressly excepted in the Amended Mortgage as aforesaid) thereafter acquired by the Company will, upon such acquisition, become subject to the lien thereof, subject, however, to liens permitted thereby and to any liens existing or placed upon such properties at the time of the acquisition thereof by the Company and except as described in the Time of Sale Prospectus and the Prospectus; and the descriptions of all such properties and assets contained in the granting clauses of the Amended Mortgage are correct and adequate for the purposes of the Amended Mortgage;
(viii) the Warrant Agreement, if any, has been duly authorized, executed and delivered by the Company;
(ix) the Unit Agreement, if any, has been duly authorized, executed and delivered by the Company;
(x) the Offered Securities have been duly authorized, executed, and delivered by the Company;
(xi) when the Offered Securities have been duly executed and authenticated in accordance with the provisions of the relevant Senior Indenture, Subordinated Indenture or Amended Mortgage, the Offered Securities will be valid and binding obligations of the Company, enforceable against them in accordance with their terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and will be entitled to the benefits of the relevant Senior Indenture, Subordinated Indenture or Amended Mortgage and to the lien of the Amended Mortgage;
(xii) this Agreement has been duly authorized, executed and delivered by the Company;
(xiii) except as rights to indemnity and contribution under this Agreement may be limited under applicable law, the execution and delivery by the Company of, and the performance by the Company of its obligations under this Agreement, the Senior Indenture, the Subordinated Indenture, the Amended Mortgage, the Offered Securities, the Warrant Agreement and the Unit Agreement will not contravene any provision of the laws of the State of Kansas or any federal law of the United States of America (including laws relating specifically to electric utility companies and the electric utility industry) that in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the topic contemplated by this Agreement, or, to the best knowledge of such counsel, of any nature other state or jurisdiction of the United States, or the articles of incorporation or by-laws (or similar organizational document) of the Company or, to the best knowledge of such counsel, any material agreement or other material instrument binding upon the Company, the Senior Indenture, the Subordinated Indenture, the Amended Mortgage, the Offered Securities, the Warrant Agreement and the Unit Agreement, provided that has occurred such counsel need not express an opinion as to federal or state securities or Blue Sky laws, and no consent, approval or authorization of any governmental body or agency under the laws of the State of Kansas or any federal law of the United States of America (except with respect to consents, approvals and authorizations relating specifically to the public utility companies or the utilities industry, as to which such counsel is not called upon to express any opinion) that has had in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the topic contemplated by this Agreement, or, to the best knowledge of such counsel, of any other state or couldjurisdiction of the United States of America or of any foreign jurisdiction is required for the performance by the Company of its obligations under this Agreement, either the Senior Indenture, the Subordinated Indenture, the Amended Mortgage, the Offered Securities, the Warrant Agreement, and the Unit Agreement provided that such counsel need not express an opinion as to federal or state securities or Blue Sky laws;
(xiv) each of the Company and the Principal Subsidiary possesses valid franchises, certificates of convenience and authority, licenses and permits authorizing it to carry on the electric utility business in which it is engaged, except in the cases that the failure to possess such franchises, certificates, licenses or permits, individually or in the aggregate, would not be reasonably expected to have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole, and neither the Company nor the Principal Subsidiary has received any notice of proceedings relating to the revocation or modification of any such franchise, certificate of convenience and authority, license or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effectmaterial adverse effect, except as set forth in or contemplated in the Time of Sale Prospectus and the Prospectus;
(dxv) the receipt statements (A) in Item 3 of the initial Borrowing Base CertificateCompany’s most recent Annual Report on Form 10-K incorporated by reference in the Time of Sale Prospectus and the Prospectus, prepared as (B) in Part II, Item 1 under the caption “Legal Proceedings” of the Closing DateCompany’s most recent Quarterly Report on Form 10-Q incorporated by reference in the Time of Sale Prospectus and (C) in the Registration Statement in Item 15, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings;
(exvi) receipt such counsel does not know of copiesany legal or governmental proceeding pending or threatened (including, certified as truewithout limitation, complete and correct by proceeding pending before the Borrowing Representative, State Corporation Commission of the final cardioCORE Acquisition AgreementState of Kansas (“KCC”) or Federal Energy Regulatory Commission (“FERC”)) to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject which is required to be described in the Registration Statement, complete the Time of Sale Prospectus or the Prospectus and is not so described, or of any contract, other document, public utility law or regulation which is required to be described in the Registration Statement, the Time of Sale Prospectus or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required;
(xvii) the securities into which the Offered Securities are convertible, initially reserved for issuance upon conversion of the Offered Company Securities (the “Underlying Securities”), have been duly authorized and reserved for issuance;
(xviii) when the Underlying Securities are issued upon conversion of the Offered Company Securities in accordance with all schedules the terms of the Offered Company Securities, such Underlying Securities will be validly issued, fully paid and exhibits theretonon-assessable and will not be subject to any preemptive or other right to subscribe for or purchase such Underlying Securities;
(xix) the Company has complied with K.S.A. § 66-125 with respect to the issuance of the Offered Securities. No additional consent, and all material related documents executed and delivered approval, authorization, filing with or order of (a) FERC under the Federal Power Act, (b) the KCC or (c) to the knowledge of the Company, any court or governmental agency or body is required in connection with the execution transactions contemplated herein, except such as have been obtained under the Securities Act and delivery the Trust Indenture Act of 1939 (the “Trust Indenture Act”) and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the cardioCORE Acquisition Agreement, all as executed Securities by the Underwriters in the manner contemplated herein and delivered by all parties thereto, and in the terms and conditions Time of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretionSale Prospectus; and
(fxx) receipt by Agent The statements in the prospectus supplement contained in the Time of evidence reasonably satisfactory Sale Prospectus and the Prospectus under “Description of First Mortgage Bonds,” “Description of Senior Notes” or “Description of Subordinated Indebtedness” and in the Base Prospectus under the caption “Description of Debt Securities” as they relate to Agent the Amended Mortgage, the Senior Debt Indenture, the Subordinated Debt Indenture and the Offered Securities, insofar as such statements constitute a summary of the legal matters or documents referred to therein, fairly present the information called for with respect to such legal matters and documents. Such counsel shall also state that nothing has come to his attention that causes him to believe (1) that the cardioCORE Acquisition has been closed and consummated in accordance with Registration Statement or any amendments thereto, on the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with date on which it became effective or the execution and delivery date of filing of the cardioCORE Acquisition Agreement. Each Lendermost recent subsequent Annual Report on Form 10-K, by delivering its signature page contained an untrue statement of a material fact or omitted to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument state a material fact required to be approved by Agent, Required Lenders stated therein or Lenders, as applicable, on the Closing Date.necessary
Appears in 1 contract
Conditions to Closing. The obligation Unless waived by the Managers, the several obligations of each Lender the Underwriters hereunder are subject to enter into the accuracy of the representations and become bound under this warranties on the part of the Company contained herein as of the date of the Underwriting Agreement and the other Financing Documents and, Closing Date (as if applicable make any initial Loans requested by Borrowers to be made on the Closing Date), shall the performance by the Company of all of the obligations to be subject performed by it under this Agreement on or prior to the receipt by Agent of each agreement, document Closing Date and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionconditions:
(a) evidence Subsequent to the Applicable Time and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the consummation possible change, in the rating accorded the Company or any of the transactions (other than the funding securities of the LoanCompany by any “nationally recognized statistical rating organization,” as such term as defined in Section 3(a)(62) contemplated by of the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;Exchange Act.
(b) No stop order suspending the payment effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission, and there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business, properties or operations of the Company and its consolidated subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus, that, in the judgment of the Managers, is material and adverse and that makes it, in the judgment of the Managers, impracticable or inadvisable to market or deliver the Offered Securities on the terms and in the manner contemplated in the Time of Sale Prospectus; and the Managers shall have received, on the Closing Date, a certificate, dated the Closing Date and signed by either the chief executive officer or chief financial officer of the Company, to the foregoing effect. Such certificate will also provide that the representations and warranties of the Company contained herein are true and correct as of the Closing Date and that the Company has complied with all fees, expenses agreements and other amounts due and payable under each Financing Document;satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date. The officer making such certificate may rely upon the best of his knowledge as to proceedings threatened.
(c) Since December 31The Managers shall have received on the Closing Date an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇, 2011Senior Vice President, there General Counsel and Corporate Secretary of the Company (or another lawyer of the Company reasonably satisfactory to the Underwriters), dated the Closing Date, addressed to the Managers to the effect that:
(i) each of the Company and Kansas Gas and Electric Company (the “Principal Subsidiary”) has been no developmentduly incorporated, eventis validly existing as a corporation in good standing under the laws of the State of Kansas and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification (except where the failure to so qualify would not have a material adverse effect upon the business or financial condition of the Company and its subsidiaries, actas a whole);
(ii) the Company has an authorized capitalization as set forth in the Time of Sale Prospectus and the Prospectus, condition and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) all of the issued shares of capital stock of the Principal Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and (except for directors’ qualifying shares and except as otherwise set forth in the Time of Sale Prospectus and the Prospectus) are owned directly and indirectly by the Company, free and clear of all liens, encumbrances, equities and claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or occurrence its subsidiaries, provided that such counsel shall state that he believes that both the Managers and he are justified in relying upon such opinions and certificates);
(iv) the Offered Securities have been duly authorized by the Company, and when executed and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) except as rights to indemnity and contribution under this Agreement may be limited under applicable law, the execution, delivery and performance of this Agreement by the Company and the issuance and sale of the Offered Securities by the Company will not contravene any provision of applicable law of the United States (including laws relating specifically to electric utility companies and the electric utility industry), Kansas, or, to the best knowledge of such counsel, of any nature other state or jurisdiction of the United States, or the articles of incorporation or by-laws (or similar organizational document) of the Company or, to the best knowledge of such counsel, any material agreement or other material instrument binding upon the Company, and, except for the orders of the Commission making the Registration Statement effective (which have been obtained) and such permits or similar authorizations required under the securities or Blue Sky laws of certain states or foreign jurisdictions (as to which such counsel is not called upon to express any opinion), no consent, approval or authorization of any governmental body or agency of the United States (except with respect to consents, approvals and authorizations relating specifically to the public utility companies or the utilities industry, as to which such counsel is not called upon to express any opinion), Kansas, or, to the best knowledge of such counsel, of any other state or jurisdiction of the United States or of any foreign jurisdiction is required for the performance by the Company of its obligations under this Agreement or the issuance and sale of the Offered Securities by the Company;
(vii) each of the Company and the Principal Subsidiary possesses valid franchises, certificates of convenience and authority, licenses and permits authorizing it to carry on the electric utility business in which it is engaged, except in the cases that has occurred that has had the failure to possess such franchises, certificates, licenses or couldpermits, either individually or in the aggregate, would not be reasonably expected to have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole, and neither the Company nor the Principal Subsidiary has received any notice of proceedings relating to the revocation or modification of any such franchise, certificate of convenience and authority, license or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effectmaterial adverse effect, except as set forth in or contemplated in the Time of Sale Prospectus and the Prospectus;
(dviii) the receipt statements (A) in Item 3 of the initial Borrowing Company’s most recent Annual Report on Form 10-K incorporated by reference in the Time of Sale Prospectus and the Prospectus, (B) in Part II, Item 1 under the caption “Legal Proceedings” of the Company’s most recent Quarterly Report on Form 10-Q incorporated by reference in the Time of Sale Prospectus and (C) in the Registration Statement in Item 15, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings;
(ix) such counsel does not know of any legal or governmental proceeding pending or threatened (including, without limitation, proceeding pending before the State Corporation Commission of the State of Kansas (“KCC”) or Federal Regulatory Energy Commission (“FERC”)) to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject which is required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and is not so described, or of any contract, other document, public utility law or regulation which is required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required;
(x) the Company has complied with K.S.A. § 66-125 with respect to the issuance of the Securities. No additional consent, approval, authorization, filing with or order of (a) FERC under the Federal Power Act, (b) the KCC or (c) to the knowledge of the Company, any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Time of Sale Prospectus; and
(xi) the statements in the prospectus supplement contained in the Time of Sale Prospectus and the Prospectus under “The Offering,” and in the Base CertificateProspectus under “Description of Capital Stock” and “Description of Depositary Shares,” insofar as such statements constitute a summary of the legal matters or documents referred to therein, prepared fairly present the information called for with respect to such legal matters and documents. Such counsel shall also state that nothing has come to his attention that causes him to believe (1) that the Registration Statement or any amendments thereto (except for the financial statements and other financial or statistical data derived therefrom that are included or incorporated by reference therein or omitted therefrom, as to which such counsel is not called upon to express any belief), on the date on which it became effective or the date of filing of the most recent subsequent Annual Report on Form 10-K, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (2) that the Time of Sale Prospectus (except for the financial statements and other financial or statistical data derived therefrom that are included or incorporated by reference therein or omitted therefrom, as to which such counsel is not called upon to express any belief), at the Applicable Time or as amended or supplemented, if applicable, as of the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (3) that the Prospectus (except for the financial statements and other financial or statistical data derived therefrom that are included or incorporated by reference therein or omitted therefrom, as to which such counsel is not called upon to express any belief), at its date or as amended or supplemented, if applicable, at the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make statements therein, in the light of the circumstances under which they were made, not misleading; or (4) that the documents incorporated by reference in the Prospectus (except for the financial statements and other financial or statistical data derived therefrom that are included or incorporated by reference therein or omitted therefrom, as to which such counsel is not called upon to express any belief), as of the dates they were filed with the Commission, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. With respect to the preceding paragraph, such counsel may state that he has not been called upon to pass upon, and that he expresses no view regarding, the financial statements or financial schedules or statistical data derived therefrom or other accounting or financial data included in the Registration Statement, the Time of Sale Prospectus or the Prospectus, and that his opinion and belief is based upon his participation in the preparation of the Registration Statement, Time of Sale Prospectus, Prospectus (as amended or supplemented) and the documents incorporated therein by reference and review and discussion of the contents thereof, but is without independent check or verification except as specified. In expressing his opinion as to questions of the law of jurisdictions other than the State of Kansas and the United States, such counsel may rely to the extent reasonable on such counsel as may be reasonably acceptable to counsel to the Underwriters. In addition, such counsel may reasonably rely as to questions of fact on certificates of responsible officers of the Company.
(d) The Managers shall have received on the Closing Date an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Company, dated the Closing Date, to the effect that:
(i) the Company is not, and after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Time of Sale Prospectus and the Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(eii) receipt of copiesexcept as rights to indemnity and contribution under this Agreement may be limited under applicable law, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of by the cardioCORE Acquisition Agreement, all as executed and delivered by all parties theretoCompany of, and the terms and conditions performance by the Company of all its obligations under, this Agreement will not contravene any provision of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery laws of the cardioCORE Acquisition Agreement. Each Lenderstate of New York or any federal law of the United States of America (except with respect to laws relating specifically to public utility companies or the utilities industry, as to which such counsel is not called upon to express any opinion) that in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the type contemplated by delivering its signature page to this Agreement, shall be deemed provided that such counsel need not express an opinion as to have acknowledged receipt federal or state securities laws or blue sky laws;
(iii) no consent, approval, authorization, or order of, or qualification with, any governmental body or agency under the laws of the State of New York or any federal law of the United States of America (except with respect to laws relating specifically to public utility companies or the utilities industry, as to which such counsel is not called upon to express any opinion) that in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the type contemplated by this Agreement is required for the execution, delivery and consented performance by the Company of its obligations under this Agreement, except (a) such as may be required under federal or state securities or blue sky laws; Such counsel has considered the statements included in the Prospectus Supplement under the caption “Underwriting” insofar as they summarize provisions of this Agreement, and in such counsel’s opinion, such statements fairly summarize these provisions in all material respects; and such counsel has considered the statements in the Time of Sale Prospectus in the Base Prospectus under the caption “Plan of Distribution,” insofar as such statements constitute a summary of the legal matters or documents referred to therein, and approvedin such counsel’s opinion, each Financing Document, each additional Operative Document such statements fairly present the information called for with respect to such legal matters and each other document, agreement and/or instrument required documents. Such counsel shall also state that (1) the Registration Statement and the Prospectus appear on their face to be approved by Agent, Required Lenders or Lenders, as applicable, on appropriately responsive in all material respects to the Closing Date.requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder; (2) nothing has come to the attention of such counsel
Appears in 1 contract
Conditions to Closing. The obligation of each the Lender to enter into and become bound under this Agreement and make the other Financing Documents and, if applicable make any initial Loans requested by Borrowers advance pursuant to be made on the Closing Date, Section 2.1 hereof shall be subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionconditions:
(a) evidence The representations of the consummation Corporation herein shall be true, complete and correct in all material respects on the date hereof and on and as of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared Closing Date as of if made on the Closing Date;
(eb) receipt of copiesOn the Closing Date, certified as truethe Loan Documents shall be in full force and effect, complete assuming due authorization and correct execution by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits other parties thereto, and all material related documents shall not have been amended or supplemented except as may have been agreed to in writing by the Lender;
(c) At or prior to the Closing Date, the Lender shall have received each of the following documents:
(i) This Agreement executed by an authorized officer of the Corporation;
(ii) The Series 2021 Note executed by an authorized officer of the Corporation;
(iii) A certificate, dated the Closing Date, executed by an authorized officer of the Corporation, to the effect that (A) the representations and delivered warranties of the Corporation contained in connection this Agreement are true and correct on the date hereof and on and as of the Closing Date as if made on the Closing Date; (B) the Resolution and this Agreement are in full force and effect and have not been amended or supplemented except as may have been approved in writing by the Lender; (C) the Corporation is not in default with respect to any of its outstanding obligations; and (D) no litigation is pending or, to the best of their knowledge, threatened in any court to restrain or enjoin the execution and delivery of this Agreement or the cardioCORE Acquisition AgreementSeries 2021 Note, all as executed and delivered by all parties thereto, and the terms and conditions of all refunding of the foregoing shall be satisfactory to Agent Refunded Obligations, or the levy and Lenders collection of the Economic Development Sales and their respective counsel in their sole discretion; and
(f) receipt by Agent Use Tax or the pledge thereof, or contesting or affecting the adoption and validity of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with Resolution or the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the authorization, execution and delivery of the cardioCORE Acquisition Agreement. Each LenderLoan Documents, or contesting the powers of the Board of Directors of the Corporation;
(iv) Certified copies of resolutions of the City and the Corporation authorizing execution, delivery and performance of all of the Loan Documents and authorizing the borrowing hereunder, along with such certificates of existence, certificates of good standing and other certificates or documents as the Lender may reasonably require to evidence the Corporation’s authority;
(v) True copies of all organizational documents of the Corporation, including all amendments, restatements or supplements thereto;
(vi) An opinion of counsel to the Corporation which shall specifically provide that (1) the Corporation is a validly existing non-profit corporation created by delivering its signature page the City of ▇▇▇▇▇ pursuant to this AgreementChapter 504 of the Act and (2) the Corporation is duly authorized and empowered to execute, shall be deemed to have acknowledged receipt of, deliver and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on perform the Closing DateLoan Documents.
Appears in 1 contract
Sources: Loan Agreement
Conditions to Closing. (a) The obligation of each Lender the Company to enter into and become bound under this Agreement and close the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be transactions contemplated hereby is subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent fulfillment or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction waiver of the following conditions precedent, each on or prior to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionClosing:
(ai) evidence of The amendment to the consummation of Company’s Second Amended and Restated Credit Agreement, dated February 23, 2005, as amended, among the transactions (other than Company, Consolidated Communications, Inc., Consolidated Communications Acquisition Texas, Inc., the lenders referred to therein and Citicorp North America, Inc. attached hereto as Exhibit A shall have become effective in accordance with its terms and the conditions to the funding of the Loanadditional Term D Loans (as defined therein) contemplated shall have been satisfied such that the proceeds of such additional Term D Loans shall be available to pay the Repurchase Consideration provided for herein.
(ii) The representations and warranties made by each Seller shall be true and correct in all material respects on and as of the Operative Documents including, without limitation, Closing as if originally made on and as of the funding Closing.
(iii) The Sellers shall have performed and complied in all material respects with all agreements and covenants required to be performed and complied with by Sellers under this Agreement at or prior to the Closing.
(iv) The Company shall have received a certificate signed by an authorized officer of any each Seller to the effect that the conditions set forth in Sections 5(a)(ii) and all investments contemplated by the Operative Documents;5(a)(iii) have been satisfied.
(b) The obligation of the payment Seller to close the transactions contemplated hereby is subject to the fulfillment or waiver of the following conditions on or prior to the Closing:
(i) The representations and warranties made by the Company shall be true and correct in all fees, expenses material respects on and other amounts due as of the Closing as if originally made on and payable as of the Closing.
(ii) The Company shall have performed and complied in all material respects with all agreements and covenants required to be performed and complied with by the Company under each Financing Document;this Agreement at or prior to the Closing.
(iii) Each Seller shall have received a certificate signed by an authorized officer of the Company to the effect that the conditions set forth in Sections 5(b)(i) and 5(b)(ii) have been satisfied.
(c) Since December 31The obligations of each party to this Agreement to close the transactions contemplated hereby are subject to the fulfillment of the condition that, 2011on or prior to the Closing, there has no order, state, rule, regulation, executive order, injunction, stay, decree or restraining order shall have been no developmentenacted, evententered, actpromulgated or enforced by any court or governmental authority indicating an intent to restrain, condition prevent or occurrence of any nature that has occurred that has had delay or could, either individually or in restructure the aggregate, reasonably be expected to have a Material Adverse Effect;transactions contemplated by this Agreement.
(d) the receipt Each of the initial Borrowing Base Certificate, prepared as of parties to this Agreement shall use their reasonable best efforts to take or cause to be performed and fulfilled all conditions precedent to its obligations to consummate the Closing Date;
(e) receipt of copies, certified as true, complete transactions contemplated by this Agreement and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection to otherwise comply with the execution and delivery terms of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Date.
Appears in 1 contract
Sources: Stock Repurchase Agreement (Consolidated Communications Holdings, Inc.)
Conditions to Closing. The obligation several obligations of each Lender the Underwriters to enter into purchase and become bound under this Agreement and pay for the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall Debt Securities will be subject to the receipt by Agent accuracy of each agreement, document the representations and instrument set forth warranties on the closing checklist prepared part of the Company herein contained, to the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions hereof, to the performance by Agent or the Company of all of its counsel, each in form covenants and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, obligations hereunder and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionfurther conditions:
(a) evidence The Prospectus shall have been timely filed with the Commission in accordance with Rule 430A of the consummation Securities Act Regulations; and, at the Closing Date and the Option Closing Date, if applicable, the Registration Statement shall have been declared effective and no stop order suspending the effectiveness of the transactions (other than Registration Statement or any part thereof shall have been issued under the funding Securities Act or proceedings therefor initiated or threatened by the Commission; and any request of the Loan) contemplated by Commission for inclusion of additional information in the Operative Documents including, without limitation, Registration Statement or the funding Prospectus shall have been complied with to the reasonable satisfaction of any and all investments contemplated by counsel to the Operative Documents;Underwriters.
(b) The Underwriters shall have received, on the payment Closing Date and, with respect to the Option Securities, on the Option Closing Date, if applicable, a certificate signed by the Chairman of the Board, the President, a Vice Chairman of the Board or any Executive or Senior Vice President and the principal financial or accounting officer of the Company, dated the Closing Date or the Option Closing Date, as the case may be, to the effect that the signers of such certificate have carefully examined the Registration Statement and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date, and with respect to the Option Securities, as of the Option Closing Date, if applicable, with the same effect as if made on the Closing Date or on the Option Closing Date, if applicable, and the Company has complied in all feesmaterial respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the Closing Date and, expenses and other amounts due and payable under each Financing Documentwith respect to the Option Securities, at or prior to the Option Closing Date, if applicable;
(cii) Since December 31, 2011since the date of the most recent financial statements included in the Registration Statement (exclusive of any supplement thereto), there has been no developmentmaterial adverse change in the condition (financial or other), eventearnings, actbusiness or properties of the Company and its subsidiaries taken as a whole, condition whether or occurrence not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement (exclusive of any nature supplement thereto); and
(iii) to each such officer's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that has occurred that has had purpose have been instituted or couldare pending or are contemplated by the Commission.
(c) Subsequent to the date hereof and prior to the Closing Date, either individually or except as set forth in the aggregateProspectus, reasonably be expected there shall not have been any change in the business or properties of the Company and its subsidiaries, taken as a whole, from that set forth in the Preliminary Prospectus that, in the Underwriters' judgment, is so material and adverse as to have a Material Adverse Effect;make it impractical to proceed with the offering or the delivery of the Debt Securities as contemplated by the Prospectus.
(d) The Underwriters shall have received opinions, dated the receipt Closing Date and, with respect to the Option Securities, dated the Option Closing Date, of Robert G. Ulric▇, ▇▇▇., ▇▇▇▇▇▇▇ Counsel to the Company, and Cahill, Gordon & ▇▇▇▇▇▇▇, ▇▇▇nse▇ ▇▇ ▇▇e Company, substantially in the form attached hereto as Exhibit A-1 and A-2, respectively. Insofar as such opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the initial Borrowing Base CertificateCompany, prepared its subsidiaries and certificates of public officials.
(e) The Underwriters shall have received an opinion, dated the Closing Date and, with respect to the Option Securities, dated the Option Closing Date, of Brown & Wood LL▇, ▇▇unsel to the Underwriters as to such matters as the Underwriters shall reasonably request. In rendering such opinion, counsel may rely upon an opinion or opinions, each dated the Closing Date and, with respect to the Option Securities, dated the Option Closing Date, of other counsel retained by them or the Company as to laws of any jurisdiction other than the United States or the State of New York, provided that (A) such reliance is expressly authorized by each opinion so relied upon and a copy of each such opinion is delivered to the Underwriters, and (B) counsel shall state in their opinion that they believe that they and the Underwriters are justified in relying thereon. Insofar as such opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Company, its subsidiaries and certificates of public officials.
(f) On the Closing Date, the Debt Securities shall be rated at least "Ba1" by Moody's Investo▇ ▇▇▇▇▇ce, Inc. ("Moody's") and "BBB-" by Standard & Poor's Rating Services, a division of McGraw Hill, Inc. ("S&P"), and the Company shall have delivered to the Underwriters a letter dated the Closing Date and, with respect to the Option Securities, dated the Option Closing Date, from each such rating agency, or other evidence satisfactory to the Underwriters, confirming that the Debt Securities have such ratings; and on or prior to the Closing Date and, with respect to the Option Securities, on or prior to the Option Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's securities by any "nationally recognized statistical rating organization" as such term is defined by the Commission for the purposes of Rule 436(g)(2) under the Securities Act; shall have occurred, or any public announcement shall have been made that any such organization has under surveillance or review their ratings of the Debt Securities or any other debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating), and if, in any such case, the effect thereof in the reasonable judgment of the Underwriters makes it impracticable or inadvisable to proceed with the purchase of the Debt Securities.
(g) At the time of the execution of this Agreement, the Underwriters shall have received a letter, dated such date, in form and substance reasonably satisfactory to them, from Deloitte & Touche LLP, independent public accountants of the Company, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information, including the financial information contained or incorporated by reference in the Registration Statement as identified by the Representative.
(h) At the Closing Date and, with respect to the Option Securities, at the Option Closing Date, the Representative shall have received from Deloitte & Touche LLP a letter, dated as of the Closing Date;
(e) receipt of copiesDate and, certified as truewith respect to the Option Securities, complete and correct by dated the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Option Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (g) of this Section.
Appears in 1 contract
Sources: Underwriting Agreement (Great Atlantic & Pacific Tea Co Inc)
Conditions to Closing. The obligation Closing Date shall not occur until the following conditions precedent are satisfied:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals), each of which shall be dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender, and the Borrower, executed by the Administrative Agent, the Syndication Agent, each Lender, and the chairman or chief executive officer and president of the Borrower;
(ii) A Note executed by a Responsible Officer of the Borrower in favor of each Lender requesting such a Note, in a principal amount equal to enter into such Lender’s Commitment;
(iii) a Secretary’s Certificate in the form of Exhibit G, signed by the Responsible Officers named therein;
(iv) Certificates evidencing the good standing of the Borrower in the states of Arkansas, Delaware, Georgia, and become bound under this Agreement Ohio;
(v) a certificate signed by a Responsible Officer of the Borrower certifying (A) that there has been no change, occurrence, or development since the date of the Audited Financial Statements, which has or could be reasonably expected to have a material adverse effect on the business, assets, liabilities (actual or contingent), operations, condition (financial or otherwise), or prospects of the Borrower and its Subsidiaries taken as a whole, and (B) the current Debt Ratings (which Debt Rating must be a minimum of BBB+/Baa1 by both S&P and ▇▇▇▇▇’▇, respectively) and further certifying that neither rating agency has indicated that such Debt Ratings would be downgraded below BBB+/Baa1, after giving effect to the execution of the Loan Documents;
(vi) an opinion of counsel to the Borrower in the form of Exhibit H; and
(vii) such other Financing Documents andassurances, if applicable make any initial Loans requested by Borrowers certificates, documents, consents, or opinions, in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent, or the Required Lenders reasonably may require.
(b) Any fees required to be made paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all attorneys’ fees and expenses of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date, shall be subject plus such additional amounts of attorneys’ fees and expenses of counsel to the receipt Administrative Agent as shall constitute its reasonable estimate of the attorneys’ fees and expenses of counsel to the Administrative Agent incurred or to be incurred by Agent of each agreement, document and instrument set forth on it through the closing checklist prepared by Agent or its counsel, each in form proceedings; provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and substance satisfactory to the Administrative Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a) evidence of the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;.
(d) the receipt The representations and warranties of the initial Borrowing Base Certificate, prepared Borrower contained in Article V shall be true and correct on and as of the Closing Date;Date and after giving effect to the Merger.
(e) receipt Contemporaneously with the effectiveness of copies, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition this Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing Merger shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has have been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection Merger Agreement.
(f) The Closing Date shall have occurred on or before September 15, 2005. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lenderconditions specified in this Section 4.01, by delivering its signature page to each Lender that has signed this Agreement, Agreement shall be deemed to have acknowledged receipt ofconsented to, and approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be or approved by Agent, Required Lenders or Lenders, as applicable, on acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing DateDate specifying its objection thereto.
Appears in 1 contract
Conditions to Closing. The obligation several obligations of each Lender the Underwriters hereunder are subject to enter into the accuracy of the representations and become bound under this warranties on the part of the Company contained herein as of the date of the Underwriting Agreement and the other Financing Documents and, Closing Date (as if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be subject to ) and the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction performance of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionconditions:
(a) evidence Subsequent to the Applicable Time and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the consummation possible change, in the rating accorded the Issuer or any of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding securities of any and all investments contemplated Issuer by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Operative Documents;Securities Act.
(b) No stop order suspending the payment effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission, and there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business, properties or operations of the Company and its consolidated subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus, that, in the judgment of the Manager, is material and adverse and that makes it, in the judgment of the Manager, impracticable or inadvisable to market or deliver the Offered Securities on the terms and in the manner contemplated in the Time of Sale Prospectus; and the Manager shall have received, on the Closing Date, a certificate, dated the Closing Date and signed by either the chief executive officer or chief financial officer of the Company, to the foregoing effect. Such certificate will also provide that the representations and warranties of the Company contained herein are true and correct as of the Closing Date and that the Company has complied with all fees, expenses agreements and other amounts due and payable under each Financing Document;satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date. The officer making such certificate may rely upon the best of his knowledge as to proceedings threatened.
(c) Since December 31The Manager shall have received on the Closing Date an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇, 2011Senior Vice President, there General Counsel and Corporate Secretary of the Company (or another lawyer of the Company reasonably satisfactory to the Underwriters), dated the Closing Date, to the effect (as applicable) that:
(i) each of the Company and Kansas Gas and Electric Company (the “Principal Subsidiary”) has been no developmentduly incorporated, eventis validly existing as a corporation in good standing under the laws of the State of Kansas and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification (except where the failure to so qualify would not have a material adverse effect upon the business or financial condition of the Company and its subsidiaries, actas a whole);
(ii) all of the issued shares of capital stock of the Principal Subsidiary and each Guarantor have been duly and validly authorized and issued, condition are fully paid and non-assessable, and (except for directors’ qualifying shares and except as otherwise set forth in the Time of Sale Prospectus and the Prospectus) are owned directly and indirectly by the Company, free and clear of all liens, encumbrances, equities or occurrence claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that he believes that both the Manager and he are justified in relying upon such opinions and certificates);
(iii) the Company has an authorized capitalization as set forth in the Time of Sale Prospectus and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iv) each of the indenture dated as of August 1, 1998 (the “Senior Indenture”) between the Company and Deutsche Bank Trust Company Americas, as successor to Bankers Trust Company, as trustee (the “Senior Debt Trustee”), the indenture to be dated as of a date indicated in a relevant prospectus supplement (the “Subordinated Indenture”) between the Company and The Bank of New York Trust Company, N.A., as trustee (the “Subordinated Debt Trustee”), the Mortgage and Deed of Trust, dated July 1, 1939, between the Company and BNY Midwest Trust Company, as successor to ▇▇▇▇▇▇ Trust and Savings Bank, as trustee (the “Mortgage Bond Trustee”), as amended and supplemented by thirty-nine indentures supplemental thereto (such Mortgage and Deed of Trust, as heretofore amended and supplemented, the “Mortgage”) and as to be amended and supplemented by the supplemental indenture, to be dated as of a date indicated in a relevant prospectus supplement (the “Supplemental Indenture”) (the Mortgage, as so amended and supplemented by such supplemental indentures, the “Amended Mortgage”), has been duly authorized, executed and delivered by the Company;
(v) assuming the due authorization, execution and delivery by the other parties thereto, the Amended Mortgage constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other similar laws affecting creditors’ rights generally from time to time in effect and to general equity principles);
(vi) the Amended Mortgage has been duly recorded and filed in each place in which such recording or filing is required to protect and preserve the lien of the Amended Mortgage, and all taxes and recording or filing fees required to be paid in connection with the execution, recording or filing of the Amended Mortgage have been duly paid;
(vii) the Company has good and sufficient title to, or a satisfactory easement in, all the real property, and has good and sufficient title to all the personal property described in the Amended Mortgage as owned by it and subject to the lien of the Amended Mortgage, except any which may have been released from the lien thereof pursuant to the provisions thereof, subject only to (a) minor leases and liens of judgments not prior to the lien of the Amended Mortgage, which, in such counsel’s opinion, do not interfere with the Company’s business, (b) minor defects, irregularities and deficiencies in titles of properties and rights-of-way which, in such counsel’s opinion, do not materially impair the use of such property and rights-of-way for the purposes for which they are held by the Company, and (c) other permitted liens as defined in the Amended Mortgage; subject to the qualifications set forth in this Section 4(c)(viii), the Amended Mortgage constitutes a valid, direct first mortgage lien upon said properties and upon all franchises owned by the Company, which properties and franchises include all the physical properties and franchises of the Company (other than classes of property expressly excepted in the Amended Mortgage); all physical properties and franchises (other than classes of property expressly excepted in the Amended Mortgage as aforesaid) thereafter acquired by the Company will, upon such acquisition, become subject to the lien thereof, subject, however, to liens permitted thereby and to any liens existing or placed upon such properties at the time of the acquisition thereof by the Company and except as described in the Time of Sale Prospectus and the Prospectus; and the descriptions of all such properties and assets contained in the granting clauses of the Amended Mortgage are correct and adequate for the purposes of the Amended Mortgage;
(viii) the Warrant Agreement, if any, has been duly authorized, executed and delivered by the Company;
(ix) The Unit Agreement, if any, has been duly authorized, executed and delivered by the Company;
(x) The Additional Guarantee, if any, has been duly authorized, executed and delivered by the Company;
(xi) the Offered Securities have been duly authorized, executed, and delivered by the Issuers;
(xii) when the Offered Securities have been duly executed and authenticated in accordance with the provisions of the relevant Senior Indenture, Subordinated Indenture or Amended Mortgage, the Offered Securities will be valid and binding obligations of the Issuers, enforceable against them in accordance with their terms (subject, as to enforcement or remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other similar laws affecting creditors’ rights generally from time to time in effect and to general equity principles), and will be entitled to the benefits of the relevant Senior Indenture, Subordinated Indenture or Amended Mortgage and to the lien of the Amended Mortgage;
(xiii) this Agreement has been duly authorized, executed and delivered by the Company and each Guarantor party hereto;
(xiv) except as rights to indemnity and contribution under this Agreement may be limited under applicable law, the execution and delivery by each Issuer of, and the performance by each Issuer of its obligations under, this Agreement, the Senior Indenture, the Subordinated Indenture, Amended Mortgage, the Offered Securities, the Warrant Agreement, the Unit Agreement and the Additional Guarantee, if any, will not contravene any provision of applicable law of the United States (including laws relating specifically to electric utility companies and the electric utility industry), Kansas, or, to the best knowledge of such counsel, of any nature other state or jurisdiction of the United States, or the articles of incorporation or by-laws (or similar organizational document) of any Issuer or, to the best knowledge of such counsel, any material agreement or other material instrument binding upon such Issuer, and, except for the orders of the Commission making the Registration Statement effective and the Senior Indenture, Subordinated Indenture and Amended Mortgage qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”) (which have been obtained) and such permits or similar authorizations required under the securities or Blue Sky laws of certain states or foreign jurisdictions (as to which such counsel is not called upon to express any opinion), no consent, approval or authorization of any governmental body or agency of the United States (except with respect to consents, approvals and authorizations relating specifically to the public utility companies or the utilities industry, as to which such counsel is not called upon to express any opinion), Kansas, or, to the best knowledge of such counsel, of any other state or jurisdiction of the United States or of any foreign jurisdiction is required for the performance by the Issuer of its obligations under this Agreement, the Senior Indenture, the Subordinated Indenture, the Amended Mortgage, the Offered Securities, the Warrant Agreement and the Unit Agreement;
(xv) Each of the Company and the Principal Subsidiary possesses valid franchises, certificates of convenience and authority, licenses and permits authorizing it to carry on the electric utility business in which it is engaged, except in the cases that has occurred that has had the failure to possess such franchises, certificates, licenses or couldpermits, either individually or in the aggregate, would not be reasonably expected to have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole, and neither the Company nor the Principal Subsidiary has received any notice of proceedings relating to the revocation or modification of any such franchise, certificate of convenience and authority, license or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effectmaterial adverse effect, except as set forth in or contemplated in the Time of Sale Prospectus and the Prospectus;
(dxvi) the receipt statements (A) in Item 3 of the initial Borrowing Base CertificateCompany’s most recent Annual Report on Form 10-K incorporated by reference in the Time of Sale Prospectus and the Prospectus, prepared as (B) in Part II, Item 1 under the caption “Legal Proceedings” of the Closing DateCompany’s most recent Quarterly Report on Form 10-Q incorporated by reference in the Time of Sale Prospectus and (C) in the Registration Statement in Item 15, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings;
(exvii) receipt such counsel does not know of copiesany legal or governmental proceeding pending or threatened (including, certified as truewithout limitation, complete and correct by proceeding pending before the Borrowing Representative, State Corporation Commission of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with State of Kansas (“KCC”) or Federal Regulatory Energy Commission (“FERC”)) to which the execution and delivery Company or any of its subsidiaries is a party or to which any of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all properties of the foregoing shall Company or any of its subsidiaries is subject which is required to be satisfactory described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and is not so described, or of any contract, other document, public utility law or regulation which is required to Agent and Lenders and their respective counsel be described in their sole discretion; andthe Registration Statement, the Time of Sale Prospectus or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required;
(fxviii) receipt by Agent the securities into which the Offered Securities are convertible, initially reserved for issuance upon conversion of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has Offered Company Securities (the “Underlying Securities”), have been closed duly authorized and consummated reserved for issuance;
(xixi) when the Underlying Securities are issued upon conversion of the Offered Company Securities in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery terms of the cardioCORE Acquisition Agreement. Each LenderOffered Company Securities, by delivering its signature page such Underlying Securities will be validly issued, fully paid and non-assessable and will not be subject to this Agreement, shall be deemed any preemptive or other right to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders subscribe for or Lenders, as applicable, on the Closing Date.purchase such Underlying Securities;
Appears in 1 contract
Conditions to Closing. The obligation several obligations of each Lender the Underwriters to enter into purchase and become bound pay for the Securities will be subject to the following conditions:
(a) If filing of the Final Prospectus is required pursuant to Rule 424(b) or Rule 434 of the Securities Act Regulations, the Final Prospectus shall have been timely filed with the Commission in accordance with Rule 424(b) or Rule 434 of the Securities Act Regulations; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under this Agreement and the other Financing Documents andSecurities Act or proceedings therefor initiated or threatened by the Commission.
(b) The Underwriters shall have received, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be subject a certificate signed by the Chairman of the Board, the President, a Vice Chairman of the Board or any Executive or Senior Vice President and the principal financial or accounting officer of the Corporation, dated the Closing Date, to the receipt by Agent effect that the signers of each agreementsuch certificate have carefully examined the Registration Statement, document the Final Prospectus and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form this Agreement and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionthat:
(ai) evidence the representations and warranties of the consummation Corporation in this Agreement are true and correct in all material respects on and as of the transactions (other than Closing Date with the funding of same effect as if made on the Loan) contemplated by Closing Date and the Operative Documents including, without limitation, Corporation has complied in all material respects with all the funding of any agreements and satisfied in all investments contemplated by material respects all the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition conditions on its part to be performed or occurrence of any nature that has occurred that has had satisfied at or could, either individually or in the aggregate, reasonably be expected prior to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date;
(eii) receipt no stop order suspending the effectiveness of copiesthe Registration Statement has been issued and no proceedings for that purpose have been instituted or, certified to the Corporation's knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the financial condition, business or results of operations of the Corporation and its subsidiaries taken as truea whole, complete whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(c) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and correct the Final Prospectus (exclusive of any amendment thereof), there shall not have been any change, or any development involving a prospective change, in or affecting the business or properties of the Corporation and its subsidiaries the effect of which is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Borrowing RepresentativeRegistration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment thereof).
(d) The Underwriters shall have received an opinion, dated the Closing Date, of the final cardioCORE Acquisition AgreementCorporation's General Counsel, complete with all schedules substantially in the form attached hereto as Exhibit A. In rendering such opinion, such counsel may state that he is passing only on matters of New York and exhibits theretoUnited States Federal law. Insofar as such opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Corporation and its subsidiaries and certificates of public officials.
(e) The Underwriters shall have received an opinion, dated the Closing Date, of counsel to the Underwriters as to such matters as the Underwriters shall reasonably request. In rendering such opinion, counsel may rely upon an opinion or opinions, each dated the Closing Date, of other counsel retained by them or the Corporation as to laws of any jurisdiction other than the United States or the State of New York, provided that (i) such reliance is expressly authorized by each opinion so relied upon and a copy of each such opinion is delivered to the Underwriters, and all material related (ii) counsel shall state in their opinion that they believe that they and the Underwriters are justified in relying thereon. Insofar as such opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Corporation and its subsidiaries and certificates of public officials.
(f) At the date hereof and at the Closing Date, the Underwriters shall have received letters, dated respectively as of the date hereof and as of the Closing Date, in form and substance reasonably satisfactory to them, from the Corporation's independent public accountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information, including the financial information contained or incorporated by reference in the Registration Statement as identified by the Representative. Such letters shall also confirm that, with respect to the Corporation, they are independent accountants within the meaning of the published rules and regulations of the American Institute of Certified Public Accountants.
(g) Prior to the Closing Date, the Corporation shall have furnished to the Underwriters such further information, certificates and documents executed and delivered as the Underwriters may reasonably request in connection with the execution and delivery offering of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing DateSecurities.
Appears in 1 contract
Conditions to Closing. 5.1 City's Conditions to Closing
(a) City shall have reviewed and approved title to the Property, as follows:
(i) City acknowledges that Seller has delivered to City a current extended coverage preliminary report on the Real Property dated August 29, 2017, issued by Title Company, accompanied by copies of all documents referred to in the report (collectively, the "Preliminary Report");
(ii) Except for the documents disclosed on Exhibit E, Seller is not aware of any existing or proposed easements, covenants, restrictions, agreements or other documents that affect the Property, and are not disclosed by the Preliminary Report and that will continue to be in effect at Closing, and City acknowledges that Seller has delivered to City copies of the documents listed on Exhibit E. ; and
(iii) City may at its option arrange for an "as-built" survey of the Land and Improvements prepared by a licensed surveyor (the "Survey"). Such survey shall be acceptable to, and certified to, City and Title Company and in sufficient detail to provide the basis for and the Title Policy without boundary, encroachment or survey exceptions. If the Preliminary Report or Survey discloses any matters of title or survey to which City objects (the “Objections”), in its sole and absolute discretion, City may give Seller notice of such objection (the “Objection Notice”) on or before 5:00 p.m. (San Francisco, CA, time) on January 5, 2018(the “Objection Date”). In the event City does not give an Objection Notice prior to the Objection Date, then all matters of title and survey existing as of the date hereof shall be deemed to be “Permitted Exceptions”. In addition, all matters of title and survey existing as of the date hereof that are not timely raised as Objections in an Objection Notice shall be Permitted Exceptions. In the event City timely delivers an Objection Notice, then Seller shall give written notice (“Seller's Response Notice”), within ten (10) business days after Seller receives the Objection Notice, indicating (x) that Seller elects, at Seller’s cost, to either (a) cure or remove such Objections or (b) cause such Objections to be insured over by the Title Company to the reasonable satisfaction of City, and to provide evidence thereof to City, or (y) that Seller is unable or unwilling to cure or remove such Objections. If Seller does not deliver the Seller’s Response Notice on or before the expiration of the ten (10) business day period set forth above, Seller shall be deemed to have given City a Seller’s Response Notice that Seller is unable or unwilling to cure such Objections. If Seller elects to cure or remove such Objections pursuant to clause (x) above, then such Objection shall not be a Permitted Exception and Seller shall cure or remove the same to the Title Company’s satisfaction at or prior to Closing, and if Seller elects to cause such Objection to be insured over by the Title Company pursuant to clause (x)(b) above, then such Objection shall be insured over to City’s satisfaction at Closing. If City fails to elect to terminate this agreement on or before the expiration of the Due Diligence Period, then, except for the Objections that Seller has agreed in writing to cure or remove, all Objections shall be deemed to be Permitted Exceptions hereunder. In addition to the foregoing, the following also shall be “Permitted Exceptions” hereunder: (A) all liens of general real estate taxes, personal property taxes, other City and County of San Francisco ad valorem charges, and all applicable sewer, utility, trash and other similar charges, in each case, to the extent the same are not yet due and payable; (B) all liens, encumbrances and other defects or exceptions to title insurance coverage caused by (x) City; (y) any party acting by or on behalf of City; or (z) Seller or any of its representatives at City’s or any party acting by or on behalf of City’s written request; and (C) all laws, regulations and ordinances, including, without limitation, all environmental laws, building codes and zoning ordinances affecting the property or the ownership, use or operation thereof adopted by any governmental authority having jurisdiction over the Property or the ownership, use or operation thereof, and all amendments or additions thereto now in effect or which may be in force and effect on the Closing Date.
(b) City's review and approval, within the Due Diligence Period, of the physical and environmental conditions of the Property. Such review may include an examination for the presence or absence of any Hazardous Material (as defined in Section 8.1(j). City shall be responsible for performing or arranging any such reviews at City's expense.
(c) If any of City's investigations reveal any contamination of the Property with any Hazardous Material, then City may, at its sole election, by written notice to Seller on or before the end of the Due Diligence Period terminate this Agreement.
(d) City's review and approval, within the Due Diligence Period, of the compliance of the Property with all applicable laws, regulations, permits and approvals.
(e) City's acknowledges that Seller, except as listed on Exhibit E attached hereto, does not have and will not be delivering to City any of the following regarding the Property: environmental reports, studies, surveys, tests, assessments; soils and/or geotechnical reports (collectively, the "Documents") .
(f) Seller shall not be in default in the performance of any covenant or agreement to be performed by Seller under this Agreement, and all of Seller's representations and warranties contained in or made pursuant to this Agreement shall have been true and correct when made and shall be true and correct as of the Closing Date. At the Closing Seller shall deliver to City a certificate certifying that each of Seller's representations and warranties contained in Section 8.1 [Representations and Warranties of Seller] below are true and correct as of the Closing Date.
(g) The obligation physical condition of each Lender the Property shall be substantially the same on the Closing Date as on the date of City's execution of this Agreement, reasonable wear and tear and loss by casualty excepted (subject to enter into the provisions of Section 9.1 [Risk of Loss]), and, as of the Closing Date, there shall be no litigation or administrative agency or other governmental proceeding, pending or threatened, which after the Closing would materially adversely affect the value of the Property or the ability of City to operate the Property for its intended use, and become bound under no proceedings shall be pending or threatened which could or would cause the change, redesignation or other modification of the zoning classification of, or of any building or environmental code requirements applicable to, any of the Property.
(h) Title Company shall be committed at the Closing to issue to City, or its nominee, (i) the Title Policy as provided in Section 3.2 [Title Insurance]
(i) The City's Mayor and the Board of Supervisors, in the respective sole discretion of each, shall have enacted a resolution approving, adopting and authorizing this Agreement and the other Financing Documents andtransactions, if applicable make on or before Thirty (30) days after the expiration or waiver of the Due Diligence Period but in any initial Loans requested by Borrowers event no later than January 23, 2018. In the event such
(j) Seller shall have delivered the items described in Section 6.3 below [Seller's Delivery of Documents] on or before the Closing.
(k) Title Company shall have agreed to be made on the real estate reporting person for the Closing Datein compliance with the Reporting Requirements (as defined in Section 6.6 below).
(l) Seller shall have terminated any leases, shall be subject licenses, operating or services agreements, and any other agreements related to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:Property.
(am) evidence of the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents City's compliance with all applicable laws, including, without limitation, the funding of any and all investments contemplated by the Operative Documents;
California Environmental Quality Act (b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date;
(e) receipt of copies, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties theretoCEQA), and the terms and conditions National Environmental Policy Act (NEPA) ("Environmental Compliance"), prior to approval by any City Commission, and/or by City's Board of all Supervisors. The City shall retain the absolute discretion before action on this project by the Board of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and Supervisors or any other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or LendersCommission, as applicable, to (i) request modification to the form of the transaction documents as may be necessary to mitigate significant impacts, (ii) balance the benefits against any significant environmental impacts prior to taking final action or (iii) determine not to proceed with this project; provided , however, City may not take any action which would be binding on Seller or the Closing DateProperty if the closing does not occur. In the event City has not satisfied or waived this condition on or before the expiration of the Due Diligence Period, Seller shall have the right to terminate the Purchase and Sale Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Conditions to Closing. The obligation Underwriter has entered into this Purchase Agreement in reliance upon the representations and warranties of each Lender to enter into the District contained herein and become bound the performance by the District of its obligations hereunder, both as of the date hereof and as of the date of Closing. The Underwriter’s obligations under this Purchase Agreement are and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be subject at the option of the Underwriter, to the receipt by Agent of each agreement, document and instrument set forth on following further conditions at the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionClosing:
(a) evidence The representations and warranties of the consummation District contained herein shall be true, complete and correct in all material respects at the date hereof and at and as of the transactions (other than the funding Closing, as if made at and as of the Loan) contemplated Closing, and the statements made in all certificates and other documents delivered to the Underwriter at the Closing pursuant hereto shall be true, complete and correct in all material respects on the date of the Closing; and the District shall be in compliance with each of the agreements made by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documentsit in this Purchase Agreement;
(b) At the payment time of the Closing, (i) the Official Statement, this Purchase Agreement, the Continuing Disclosure Agreement and the Resolution shall be in full force and effect and shall not have been amended, modified or supplemented except as may have been agreed to in writing by the parties hereto; (ii) all feesactions under the Act which, expenses in the opinion of Bond Counsel, shall be necessary in connection with the transactions contemplated hereby, shall have been duly taken and other amounts due shall be in full force and payable effect; and (iii) the District shall perform or has performed all of its obligations required under each Financing Documentor specified in the Resolution, this Purchase Agreement or the Continuing Disclosure Agreement to be performed at or prior to the Closing;
(c) Since December 31No decision, 2011ruling or finding shall have been entered by any court or governmental authority since the date of this Purchase Agreement (and not reversed on
(A) seeking to restrain or enjoin the execution, there has been no development, event, act, condition sale or occurrence delivery of any nature that has occurred that has had of the Bonds, (B) in any way contesting or couldaffecting the authority for the execution, either individually sale or delivery of the Bonds, this Purchase Agreement or the Continuing Disclosure Agreement, or (C) in any way contesting the aggregateexistence or powers of the District, reasonably be expected to have a Material Adverse Effector contesting in any way the completeness or accuracy of the Official Statement;
(d) Between the receipt date hereof and the Closing, the market price for the Bonds, or the market for or marketability or the ability of the Underwriter to enforce contracts for the sale of the Bonds at the initial Borrowing Base Certificateoffering prices set forth in the Official Statement, prepared shall not have been materially adversely affected by reason of any of the following:
(1) legislation enacted by the Congress of the United States, or by the legislature of the State, or introduced in the Congress or recommended for passage by the President of the United States, or a decision rendered by a court of the United States or the State or by the United States Tax Court, or an order, ruling, regulation (final, temporary or proposed) or official statement issued or made:
(i) by or on behalf of the United States Treasury Department, or by or on behalf of the Internal Revenue Service or other federal or State authority, which would have the purpose or effect of changing, directly or indirectly, the federal income tax consequences of interest on obligations of the general character of the Bonds in the hands of the holders thereof or State tax consequences of interest on obligations of the general character of the Bonds in the hands of the holders thereof; or
(ii) by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction over the subject matter thereof, to the effect that the Bonds, or obligations of the general character of the Bonds, including any and all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended, or that the Resolution is not exempt from qualification under the Trust Indenture Act of 1939, as amended;
(2) the declaration of war or engagement in or escalation of major military hostilities by the United States or the occurrence of any other national or international emergency or calamity or crisis relating to the effective operation of the government or the financial community in the United States;
(3) the declaration of a general banking moratorium by federal, New York or State authorities having jurisdiction, or the general suspension of trading on any national securities exchange or fixing of minimum or maximum prices for trading or maximum ranges for prices for securities on any national securities exchange, whether by virtue or a determination by that exchange or by order of the Securities and Exchange Commission or any other governmental authority having jurisdiction or a material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred;
(4) a decision by a court of the United Stated shall be rendered, or a stop order, release, regulation or no-action letter by or on behalf of the Securities and Exchange Commission or any other governmental agency having jurisdiction of the subject matter shall have been issued or made, to the effect that the issuance, offering or sale of the Bonds, including the underlying obligations as contemplated by this Purchase Agreement or by the Official Statement, or any other document relating to the issuance, offering or sale of the Bonds, is or would be in violation of any provision of the federal securities laws at the Closing Date, including the Securities Act, the Exchange Act and the Trust Indenture Act;
(5) the imposition by the New York Stock Exchange, other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds, or obligations of the general character of the Bonds, or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, the Underwriter;
(6) an order, decree or injunction of any court of competent jurisdiction, or order, filing, regulation or official statement by the Securities and Exchange Commission, or any other governmental agency having jurisdiction over the subject matter thereof, issued or made to the effect that the issuance, offering or sale of obligations of the general character of the Bonds, or the issuance, offering or sale of the Bonds, as contemplated hereby or by the Official Statement, is or would be in violation of the federal securities laws, as amended and then in effect;
(7) the occurrence of or any notice given of any intended downgrading, suspension, withdrawal or negative change in credit watch status by any national rating service to the District’s outstanding indebtedness by a national rating agency;
(8) any event occurring, or information becoming known which, in the reasonable judgment of the Underwriter, makes untrue in any material adverse respect any statement or information set forth in the Official Statement, or has the effect that the Official Statement contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading; or
(9) the marketability of the Bonds or the market price thereof, in the opinion of the Underwriter, has been materially and adversely affected by disruptive events, occurrences or conditions in the securities or debt markets.
(e) receipt At or prior to the Closing, the Underwriter shall have received the following documents, in each case satisfactory in form and substance to the Underwriter:
(1) A certificate of copies, certified as true, complete the Clerk of the Board of Trustees to the effect that (i) the copy of the Resolution attached thereto is a true and correct by the Borrowing Representativecopy thereof, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretion; and
(f) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Date.
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to Closing. The obligation a. Consummation by Buyer of each Lender the transactions contemplated hereby is subject to enter into and become bound under this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers fulfillment on or prior to be made on the Closing Date, shall be subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedentconditions, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionunless waived by Buyer:
(ai) evidence the representations and warranties of Seller contained in this Agreement shall be true and correct in all respects (in the case of any representation or warranty containing any materiality qualification) or true and correct in all material respects (in the case of any representation or warranty without any materiality qualification), in either case, as of the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any date hereof and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses at and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date, with the same force and effect as if made at and as of the Closing Date, and Buyer shall have received a certificate, dated as of the Closing Date, duly executed by Seller to such effect;
(eii) receipt of copiesSeller and the Members shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date, certified and Buyer shall have received a certificate, dated as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition AgreementClosing Date, complete with duly executed by Seller and the Members to such effect;
(iii) all schedules consents, authorizations, orders and exhibits theretoapprovals of, and all material related documents executed filings and delivered registrations with any governmental entity or any other Person or entity which are required for or in connection with the execution and delivery of this Agreement and the cardioCORE Acquisition consummation by each party hereto of the transactions contemplated hereby, shall have been obtained or made, including but not limited to (A) the expiration or early termination of the HSR Act waiting period, and (B) obtainment of the consents to the assignment of the Sales Tax Incentive Agreement, all as executed and delivered by all parties theretothe 2008 Sanction Agreements, the Assumed Indebtedness, the Lease Assignments and the terms and conditions other Contracts to be assigned to Buyer;
(iv) no law shall have been enacted, entered, issued, promulgated or enforced by any governmental entity, nor shall any legal action, proceeding or arbitration be pending or threatened at what would otherwise be the Closing Date, which prohibits or restricts or, (if successful) would prohibit or restrict, the transactions contemplated by this Agreement or would not permit the Business of all Seller as presently conducted to continue unimpaired following the Closing Date;
(v) there shall not have been: (A) any material adverse change in the properties or assets of Seller; (B) any change in applicable laws which would reasonably be expected to have a material adverse change in the business, operations, properties, prospects, assets or condition (financial or otherwise) of the foregoing business of Seller; and (C) any material damage to the assets or properties of Seller by fire, flood, casualty, act of God or the public enemy or other cause, regardless of insurance coverage for such damage;
(vii) the deliveries referred to in paragraph 3(b) shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretionhave been made; and
(fviii) receipt by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition this Agreement and other material related documents executed and delivered in connection with the execution and delivery transactions contemplated herein having been approved by the Board of Directors of Buyer (evidence of which must be provided to Seller within ten (10) days following the expiration of the cardioCORE Acquisition Agreement. Each Lender, Due Diligence Period).
b. Consummation by delivering its signature page Seller of the transactions contemplated hereby is subject to this Agreement, shall be deemed the fulfillment on or prior to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Date, of each of the following conditions, unless waived by Seller:
(i) the representations and warranties of Buyer contained in this Agreement shall be true and correct in all respects (in the case of any representation or warranty containing any materiality qualification) or true and correct in all material respects (in the case of any representation or warranty without any materiality qualification), in either case, as of the date hereof and at and as of the Closing Date, with the same force and effect as if made at and as of the Closing Date, and Seller and the Members shall have received a certificate, dated as of the Closing Date, duly executed by Buyer to such effect;
(ii) Buyer shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date, and Seller and the Members shall have received a certificate, dated as of the Closing Date, duly executed by Buyer to such effect;
(iii) the HSR Act waiting period shall have expired or been earlier terminated; and
(iv) the deliveries referred to in paragraph 3c. and d. shall have been made.
Appears in 1 contract
Sources: Asset Purchase Agreement (Speedway Motorsports Inc)
Conditions to Closing. The obligation obligations of the Managing Agent hereunder shall be subject, in the discretion of the Managing Agent, to the condition that all representations and warranties and other statements of the Company herein are, at and as of the SEC Effective Date and each Lender to enter into and become bound under this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, true and correct in all material respects, and the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be subject performed, and the following additional conditions:
(a) The Registration Statement shall have become and shall remain effective under the Act.
(b) If required, the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the Regulations.
(c) All appropriate post-effective amendments to the receipt Prospectus shall have been filed with the Commission and the Commission, on or before the relevant Subsequent Closing Date, either shall have raised no objections or comments thereto, or it shall have declared each of such post-effective amendments to be effective.
(d) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission, and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Managing Agent.
(i) The Company (including its Subsidiaries) shall not have sustained since the date of the latest audited financial statement included in the Prospectus, any loss or interference with its business, fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, and (ii) since the respective dates as of which information is given in the Prospectus there shall not have been any change in the capital stock or long-term debt of the Company as a whole or any change, or any development involving a prospective change, in or affecting the general affairs, prospects, management, financial position, shareholders’ equity or results of operations of the Company (including its Subsidiaries) otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the reasonable judgment of the Managing Agent so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being issued at such Closing Date on the terms and in the manner contemplated by the Prospectus.
(f) On or after the date hereof there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or the American Stock Exchange; (ii) a general moratorium on commercial banking activities in any state declared by either Federal or state authorities; (iii) any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis if the effect of any such event specified in this clause in the reasonable judgment of the Managing Agent makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being issued at such Closing Date on the terms and in the manner contemplated in the Prospectus; or (iv) such a material adverse change in general economic, political, financial or international conditions affecting financial markets in the United States having a material adverse impact on trading prices of securities in general, as, in the reasonable judgment of the Managing Agent makes it inadvisable to proceed with the sale of the Shares through the Managing Agent.
(g) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the applicable Closing Date, prevent the issuance or sale of the Shares, and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the applicable Closing Date, prevent the issuance or sale of the Shares.
(h) The Managing Agent shall have received a certificate of the Chief Executive Officer and Chief Financial Officer of the Company, dated as of each agreement, document Closing Date to the effect that (as of the SEC Effective Date and instrument as of the applicable Closing Date): (i) the conditions set forth in this Section 6 have been satisfied, (ii) the representations and warranties of the Company set forth in Section 1 hereof are accurate, (iii) all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the closing checklist prepared Company and the Subsidiaries have not sustained any material loss or interference with their respective businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereof has been issued and no proceedings therefore have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included or incorporated by reference in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included or incorporated by reference and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus there has not been any material adverse change or any development involving a prospective material adverse change, whether or not arising from transactions in the ordinary course of business, in or affecting (x) the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company and the Subsidiaries, taken as a whole; (y) the long term debt (if any) and capital stock of the Company or any of its Subsidiaries; or (z) the Offering or consummation of any of the other transactions contemplated by this Agreement, the Registration Statement and the Prospectus.
(i) The Managing Agent or its counselshall have received the favorable written opinion of Arent Fox PLLC, each legal counsel for the Company, dated as of the applicable Closing Date addressed to the Managing Agent in the form attached hereto as Exhibit A.
(j) As of the SEC Effective Date and as of the applicable Closing Date, the Managing Agent shall have received a “cold comfort” letter from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP independent public accountants for the Company, dated, respectively, as of the date of delivery and addressed to the Managing Agent and in form and substance satisfactory to Agentthe Managing Agent and its counsel, confirming that they are independent certified public accountants with respect to the Company and its Subsidiaries within the meaning of the Act and the Regulations, and stating, as of the date of delivery (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to the date of such letter), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter and, with respect to letters issued as of subsequent Closing Dates, confirming the conclusions and findings set forth in such prior letter.
(k) Orange Realty and the Managing Agent shall have entered into the Orange Realty Advisory Agreement.
(l) Orange Advisors and the Managing Agent shall have entered into the Orange Advisors Advisory Agreement.
(m) NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms and arrangements between the Company and the Managing Agent.
(n) The Company shall have furnished the Managing Agent and its counsel with such other closing deliverables certificates, opinions or other documents as it may have reasonably requested requested.
(o) If any of the conditions specified in this Section 6 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to the Managing Agent or to its counsel pursuant to this Section 6 shall not be reasonably satisfactory in form and substance to the Managing Agent and Lendersits Counsel, and to the satisfaction all obligations of the following conditions precedentManaging Agent hereunder may be cancelled by the Managing Agent at, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a) evidence of or at any time prior to, the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date;
(e) receipt of copies, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties theretoapplicable Closing, and the terms and conditions of all obligations of the foregoing Managing Agent to act hereunder may be cancelled by the Managing Agent. Notice of such cancellation shall be satisfactory given to Agent and Lenders and their respective counsel the Company in their sole discretion; and
(f) receipt writing, or by Agent of evidence reasonably satisfactory to Agent that the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreementtelephone. Each Lender, by delivering its signature page to this Agreement, Any telephonic notice shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Dateconfirmed promptly thereafter in writing.
Appears in 1 contract
Sources: Agency Agreement (Orange REIT, Inc.)
Conditions to Closing. The obligation of each Lender the Borrower and the Purchasers to enter into and become bound under this Agreement and the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, shall be perform their obligations hereunder is subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of the following conditions precedent, each on or prior to the satisfaction of Agent and Lenders and their respective counsel in their sole discretionClosing Date:
(a) evidence of the consummation of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any The representations and all investments contemplated by the Operative Documents;
(b) the payment of all fees, expenses warranties set forth in Article IV hereof and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably other Investment Documents shall be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared true and correct in all material respects on and as of the Closing Date;.
(eb) receipt The Borrower shall be in compliance with all the terms and provisions set forth herein and in each other Investment Document on its part to be observed or performed, and at the time of copiesand immediately after the Closing, certified no Event of Default or Default shall have occurred and be continuing before or after giving effect to the Investment Documents.
(c) The Purchasers shall have received the following items as trueof the Closing:
(i) the Notes and the Warrants, complete and correct duly executed by the Borrowing Representative, Borrower and each of the final cardioCORE Acquisition Agreementother Investment Documents, complete with all schedules and exhibits thereto, and all material related documents duly executed and delivered in connection with the execution and delivery by each of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be in each case in a form satisfactory to Agent and Lenders and their respective counsel in their sole discretionthe Purchasers; and
(fii) receipt (A) a copy of the certificate or articles of incorporation or analogous organizational documents of the Borrower, including all amendments thereto (the “Certified Charter”), certified as of a recent date by Agent the Secretary of evidence reasonably satisfactory State of the jurisdiction of its organization, and a certificate as to Agent the good standing of the Borrower as of a recent date, from such Secretary of State; (B) a certificate of the Secretary or Assistant Secretary of the Borrower dated as of the Closing Date and certifying (1) that attached thereto is a true and complete copy of the by-laws or analogous operational documents or agreements of the Borrower as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (2) below, (2) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of the Borrower authorizing the execution, delivery and performance of the Investment Documents and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (3) that the cardioCORE Acquisition has certificate or articles of incorporation or analogous organizational documents of the Borrower have not been closed amended since the date of the last amendment thereto shown on the Certified Charter, and consummated in accordance with (4) as to the cardioCORE Acquisition Agreement incumbency and specimen signature of each officer executing any Investment Document or any other material related documents executed and document delivered in connection with the execution and delivery herewith on behalf of the cardioCORE Acquisition Agreement. Each Lender, by delivering its Borrower; and (C) a certificate of another officer as to the incumbency and specimen signature page of the Secretary or Assistant Secretary of the Borrower executing the certificate pursuant to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, on the Closing Date.clause (B) above;
Appears in 1 contract
Sources: Note Purchase Agreement (Agenus Inc)
Conditions to Closing. The obligation of each Lender to enter into and become bound under this Agreement and make the other Financing Documents and, if applicable make any initial Loans requested by Borrowers to be made on the Closing Date, Date shall be subject to the receipt by Administrative Agent and the Initial Lenders of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counselClosing Checklist, each in form and substance reasonably satisfactory to Agent, and such other closing deliverables reasonably requested by Administrative Agent and the Initial Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Administrative Agent and Initial Lenders and their respective counsel in their sole discretion:
(a) evidence after giving effect to the Transactions, (i) neither the Borrower nor any of the consummation of the transactions (its Subsidiaries shall have any material Debt for borrowed money other than the funding of the Loan) contemplated by the Operative Documents including, without limitationObligations, the funding First Lien Credit Agreement Debt or the Senior Notes and (ii) the Borrower shall have unrestricted cash and Permitted Investments of any and all investments contemplated by the Operative Documentsnot less than $15,000,000;
(b) the payment Administrative Agent and Initial Lenders shall have received on or before the Closing Date duly executed counterparts, as applicable, of the Notice of Borrowing, each of the Financing Documents and any other agreement, document, instrument and other item set forth on the Closing Checklist attached hereto as Annex B, each in form and substance reasonably satisfactory to the Administrative Agent and the Initial Lenders;
(c) [Reserved];
(d) the representations and warranties of each Credit Party contained in the Financing Documents shall be true, correct and complete on and as of the Closing Date;
(e) upon giving effect to the Transactions contemplated to occur hereunder, (i) no Default or Event of Default shall be outstanding or shall result therefrom and (ii) no default, event of default or similar event will exist under the First Lien Credit Agreement, the Senior Notes or any ancillary document to which any Credit Party is a party;
(f) the Administrative Agent and the Initial Lenders shall have received a certificate from an officer of Borrower (in such officer’s representative capacity and not in his individual capacity), dated as of the Closing Date, certifying (i) that the statement set forth in Section 7.1(d) is true and correct and (ii) that the conditions set forth in this Section 7.1 have been satisfied;
(g) since December 31, 2014, other than has been Publicly Disclosed, there shall not have been any change, event, development, circumstance, condition, occurrence or effect that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(h) the Administrative Agent shall have received, at least five (5) Business Days prior to the Closing Date, all completed tax forms (including W-9 if applicable), documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that is requested by the Administrative Agent or any Initial Lender in writing at least five (5) Business Days prior to the Closing Date;
(i) the Administrative Agent and the Lead Lenders shall have received the executed legal opinions of (i) ▇▇▇▇▇▇▇▇ & Knight LLP, as counsel to the Credit Parties, and (ii) local counsel to Borrower in the jurisdictions listed on Schedule 7.1(i) in form and substance reasonably satisfactory to the Administrative Agent and the Lead Lenders (Borrower, the other Credit Parties and the Administrative Agent hereby instruct such counsel to deliver such legal opinion);
(j) the Administrative Agent and the Lead Lenders shall have received copies of insurance certificates, if applicable, evidencing insurance required to be maintained by Borrower and the Restricted Subsidiaries pursuant to Section 4.4, each of which shall name the Secured Parties, as additional insureds on any such liability insurance and, if casualty insurance is obtained, name the Administrative Agent as additional loss payee under any such casualty insurance, in each case in form and substance reasonably satisfactory to the Administrative Agent and the Lead Lenders (provided that if such endorsement or amendment cannot be delivered by the Closing Date, the Administrative Agent (at the direction of the Lead Lenders) may consent to such endorsement or amendment being delivered at such later date as it reasonably deems appropriate in the circumstances);
(k) the Administrative Agent and the Lead Lenders shall have received the results of a recent appropriate UCC search with respect to each Credit Party and title searches with respect to Borrower’s primary Oil and Gas Properties, and such searches shall reveal no Liens on any of the assets of the Credit Parties except for (i) Permitted Liens or (ii) Liens discharged on or prior to the Closing Date pursuant to documentation reasonably satisfactory to the Administrative Agent and the Lead Lenders;
(l) all actions necessary to establish that (i) the Administrative Agent will have a perfected second priority security interest (subject to Permitted Liens) in the Collateral shall have been taken and (ii) the Collateral includes all collateral securing the First Lien Credit Agreement Debt;
(m) prior to or substantially concurrently with the Closing Date and the Exchange Agreement shall have become effective according to its terms, the Conversion Notes shall convert into Converted Loans;
(n) Lead Lenders shall have had the opportunity to review and approve the press release and 8-K disclosure relating to the Transactions;
(o) all fees, expenses and other amounts due and payable under each Financing Document;
(c) Since December 31, 2011, there has Document shall have been no development, event, act, condition or occurrence of any nature that has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date;
(e) receipt of copies, certified as true, complete and correct by the Borrowing Representative, of the final cardioCORE Acquisition Agreement, complete with all schedules and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition Agreement, all as executed and delivered by all parties thereto, and the terms and conditions of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretionpaid; and
(fp) receipt by Agent of evidence reasonably satisfactory Borrower shall have Publicly Disclosed any material non-public information it delivered to Agent that Public Lenders on or prior to the cardioCORE Acquisition has been closed and consummated in accordance with the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery of the cardioCORE Acquisition AgreementClosing Date. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Financing Document and each other document, agreement and/or instrument required to be approved by Administrative Agent, Required Lead Lenders or Lenders, as applicable, on the Closing Date.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Warren Resources Inc)
Conditions to Closing. The obligation of each Lender to enter into and This Agreement shall not become bound under this Agreement effective (and the other Financing Documents and, if applicable Lenders shall not be required to make any the initial Loans requested by Borrowers to be made on or issue any Letters of Credit) unless the Closing DateDate has occurred on or prior to December 16, shall be subject 2009 and the Company has furnished to the receipt by Administrative Agent each of each agreementthe following, document and instrument set forth on with sufficient copies for the closing checklist prepared by Agent or its counselLenders, each all in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by the Administrative Agent and the Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their respective counsel in their sole discretion:
(a1) evidence Copies of the consummation Certificate of Incorporation (or other comparable constituent document) of each Initial Loan Party together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of organization;
(2) Copies, certified by the Secretary or Assistant Secretary of each Initial Loan Party of its By-Laws (or other comparable governing document) and of its Board of Directors’ resolutions (and required resolutions of other bodies) authorizing the execution of the transactions (other than the funding of the Loan) contemplated by the Operative Documents including, without limitation, the funding of any and all investments contemplated by the Operative Loan Documents;
(b3) An incumbency certificate, executed by the payment Secretary or Assistant Secretary of all feeseach Initial Loan Party which shall identify by name and title and bear the signature of the officers of such Initial Loan Party authorized to sign the Loan Documents (and, expenses and other amounts due and payable under each Financing Documentin the case of the Company, to make borrowings hereunder), upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the applicable Loan Party;
(c4) Since December 31A certificate, 2011in form and substance satisfactory to the Administrative Agent, there has been signed by the chief financial officer or treasurer of the Company, stating that on the Closing Date (both before and after giving effect to the Loans made and/or Letters of Credit issued thereon) all the representations in this Agreement are true and correct in all material respects (unless such representation and warranty is made as of a specific date, in which case, such representation and warranty shall be true and correct in all material respects as of such date) and no development, event, act, condition Default or occurrence of any nature that Unmatured Default has occurred that has had or could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effectand is continuing;
(d5) An opening compliance certificate, substantially in the receipt form of Exhibit H attached hereto and made a part hereof, signed by the Company’s chief financial officer or treasurer, but solely demonstrating compliance with the provisions of Section 7.4 as of the end of the fiscal quarter ending November 27, 2009, all in form and substance reasonably satisfactory to the Administrative Agent;
(6) Evidence satisfactory to the Administrative Agent that the Prior Credit Agreement has terminated and that all obligations, indebtedness and liabilities outstanding under the Prior Credit Agreement have been repaid in full and all liens (if any) granted thereunder shall have been released, or the Company has arranged for such termination, repayment and release from the proceeds of the initial Borrowing Base CertificateLoans hereunder (in either case, prepared as documented in a payoff letter in form and substance reasonably satisfactory to the Administrative Agent);
(7) Written money transfer instructions reasonably requested by the Administrative Agent, addressed to the Administrative Agent and signed by an Authorized Officer;
(8) Evidence satisfactory to the Administrative Agent that the Company has paid to the Administrative Agent and the Arrangers the fees agreed to in the fee letters described in Section 2.14(C)(ii) and Section 2.14(C)(iii);
(9) The written opinions of the Company’s and the Subsidiary Guarantors’ U.S. counsel in the forms of the opinions attached hereto as Exhibit E, addressed to the Administrative Agent and the Lenders, in form and substance acceptable to the Administrative Agent and its counsel;
(10) The written opinion of French counsel to Steelcase SAS, addressed to the Administrative Agent and the Lenders, in form and substance acceptable to the Administrative Agent and its counsel;
(11) A certificate, in form and substance satisfactory to the Administrative Agent, signed by the chief financial officer or treasurer of the Company, demonstrating that on the Closing Date, (i) the total assets of all Non-Supporting Subsidiaries do not exceed thirty percent (30%) of the Company’s Consolidated Assets, determined as of August 28, 2009, and (ii) the total sales of all Non-Supporting Subsidiaries do not exceed thirty percent (30%) of the Company’s Consolidated Sales, determined as of August 28, 2009 (it being understood and agreed, however, that, in making such determination, total assets and total sales of each Non-Supporting Subsidiary shall be determined only by reference to the total assets and total sales of such Non-Supporting Subsidiary (and not on a consolidated basis for such Non-Supporting Subsidiary) and shall exclude all offsetting debits and credits between such Non-Supporting Subsidiary and its respective consolidated Subsidiaries and all equity investments in such consolidated Subsidiaries);
(12) A certificate, in form and substance satisfactory to the Administrative Agent, signed by an Authorized Officer of the Company, (a) identifying and describing the ownership of the Significant Subsidiaries of the Company as of the Closing Date and (b) identifying and attaching the Investment Policy of the Company as in effect on the Closing Date;
(e13) receipt of copies, certified as true, complete and correct A Pledge Agreement governed by the Borrowing Representative, laws of France with respect to the pledge of 65% of the final cardioCORE Acquisition Agreement, complete with all schedules voting Equity Interests (and exhibits thereto, and all material related documents executed and delivered in connection with the execution and delivery 100% of the cardioCORE Acquisition Agreementnon-voting Equity Interests, all as executed and delivered by all parties thereto, and the terms and conditions if any) of all of the foregoing shall be satisfactory to Agent and Lenders and their respective counsel in their sole discretionSteelcase SAS; and
(f14) receipt by Such other documents as the Administrative Agent or any Lender or its counsel may have reasonably requested with at least two (2) Business Days’ prior notice (unless the Company otherwise consents, such consent not to be unreasonably withheld or delayed), including, without limitation, a counterpart of evidence reasonably satisfactory to Agent that this Agreement signed on behalf of such party, the cardioCORE Acquisition has been closed Guarantees and consummated in accordance with each other instrument, document, agreement or certificate reflected on the cardioCORE Acquisition Agreement and other material related documents executed and delivered in connection with the execution and delivery List of the cardioCORE Acquisition Agreement. Each Lender, by delivering its signature page Closing Documents attached as Exhibit F to this Agreement. Without in any way limiting the foregoing, this Agreement shall be deemed to have acknowledged receipt ofnot become effective unless and until it has been executed by the Company, the Administrative Agent and the Lenders, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved such party has notified the Administrative Agent by Agent, Required Lenders facsimile or Lenders, as applicable, on the Closing Dateelectronic transmission that it has taken such action.
Appears in 1 contract
Sources: Credit Agreement (Steelcase Inc)